Delhi District Court
Sh. Ram Singh S/O Late Sh. Kallu vs Sh. Kale Khan S/O Saluat Khan on 9 February, 2016
IN THE COURT OF SHRI RAJ PAUL SINGH TEJI
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL
(WEST -01) DELHI
Case No. : 17/12
1. Sh. Ram Singh s/o Late Sh. Kallu
2. Lakkhan Singh s/o Late Sh. Kallu
(Petitioner No.2 being minor through his Brother,
next friend and natural guardian the petitioner No.1)
All R/o Jhuggi, near H. No 1/96, Lakkar Mandi, Chuna Bhatti,
Kirti Nagar, Delhi
Permanent R/o H. No. 69, Maheshpur, Tehsil Sidhaunli
Distt. Sitapuyr-261403 ,U.P
.........Petitioners
Versus
1. Sh. Kale Khan s/o Saluat Khan
Village Tahtada, P. S. Kishangarh,
Distt. Alwar, Rajasthan (driver)
2. Budh Ram Singh s/o Sh. Ram Swaroop
R/o RZF-1074, Guru Nanak Marg, Raj Nagar-II,
Palam, New Delhi -45
Service of respondent No.1 & 2 also to be served
through IO of the case S.I. Nathu Lal, P.S. Kirti Nagar, Delhi (owner)
3. M/s Bharti AXA General Insurance Co. Ltd.
Second Floor, Bigjo's Tower, A-8, Netaji Subash Pllace, New Dedlhi -34 ( insurer) ......... Respondents Date of Institution: : 03/01/2012 Date of reserving order/judgment : 14/01/2016 Date of pronouncement: : 09/02/2016 Suit No. 17/12 Page No. 1/14 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 petitioners for grant of compensation qua the death of deceased Sh. Kallu @ Kallu Ram in the road vehicular accident.
2. Brief facts of the present case are that on 20-21/11/2011, when the deceased was sleeping on the pavement near B-33, Lakkad Mandi, Kirti Nagar, New Delhi, a Mahindra & Mahindra Tractor/Water Tanker bearing registration No. DL-1E-1980 which was being driven by its driver/ respondent No.1 in rash and negligent manner crushed the deceased. Resultantly, the deceased sustained fatal injuries due to injuries. In the present case, the mother of the petitioners is predeceased to the deceased. In total the petitioners have claimed a total sum of Rs. 15,00,000/- on account of compensation.
3. Written statement has been filed by respondents No.1 wherein he categorically denied the rash and negligent aspect and denied contents of the petition.
4. Written statement has been filed by respondents No.2/ owner of the offending vehicle wherein he categorically denied the rash and negligent aspect and denied contents of the petition.
5. Written statement has been 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. The insurance company has taken the defence that the driver of the offending vehicle was not holding valid driving license as on the date of accident.
6. On the pleadings of the parties following issues were framed by the Ld. Predecessor of this Tribunal vide order dated 17/10/2012.
Suit No. 17/12 Page No. 2/141.Whether the deceased Sh. Kallu @ Kallu Ram suffered injuries in an accident that took place on 20-21/11/2011 involving vehicle No. DL-1Le-1980 driven by the Respondent No.1, owned by the Respondent No.2 and insured with the Respondent No.3?OPP
2. Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
3. Relief.
7. In order to establish its claim, the petitioner No.1 Sh Ram Singh has examined himself as PW-1.
8. Respondents No. 1 & 2 have not examined any witness in their defence despite opportunities being granted to them.
9. Respondent No. 3/ insurance company has examined SI Rambir Singh, the IO of the case as R3W1 and also examined its officer Sh. Siddhant Jaiswal as R3W2 in its defence.
10. 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 petitioners and the learned counsel for the respondents.
My findings on various issues are as under :-
ISSUE NO. 11.Whether the deceased Sh. Kallu @ Kallu Ram suffered injuries in an accident that took place on 20-21/11/2011 involving vehicle No. DL-1Le-1980 driven by the Respondent No.1, owned by the Respondent No.2 and insured with the Respondent No.3?OPP
11. The present petition has been filed by the petitioners u/s 166 & 140 M. V. Act and the onus is upon the petitioners to prove the rash and negligent act of the respondent No.1.
12. In the present case, the petitioners have filed the attested copies u/s 356/11 u/s 279/304-A IPC, P.S. Kirti Nagar.
Suit No. 17/12 Page No. 3/1413. On the aspect of negligence, 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 completion 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 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.
Further, 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 Suit No. 17/12 Page No. 4/14 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."
In the light of the law discussed above and after going through all the attested copies of the criminal case as well as documents filed by the petitioners as a whole it is clear that respondent no. 1 was driving the vehicle in rash and negligent manner.
The issue no. 1 ,therefore, stands decided in favour of the petitioner and against the respondents. `
14. COMPENSATION /ISSUE NO.2 :
The copy of Election Identity Card of the deceased reveals the year of birth as 1975. The date of accident is 20-21/11/2011. Accordingly, the deceased was 36 years of age as on date of accident.
15. The deceased was stated to be rickshaw puller and was stated to be earning Rs. 200/- or Rs. 250/- per day, but no income proof filed or proved on record. The petitioners have neither filed the education qualification documents of the deceased nor 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 20- 21/11/2011 on which the minimum wages for unskilled person for the relevant Suit No. 17/12 Page No. 5/14 period were Rs. 6656/-.
16. Ld. Counsel for petitioners requested for balancing the income of the victim on the basis of inflation trends and requested that 50% increase be made in the income of the victim on the basis of judgment of Hon'ble Supreme Court of India in "Rajesh & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563 . On the other hand, Ld. counsel for the insurer objected to same.
I have taken care of the submissions of the Ld. Counsel for petitioners and have perused the record.
Initially, the Hon'ble Supreme Court of India in 'Santosh Devi Vs National Insurance Company Ltd. & Ors' in Civil Appeal No. 3723 of 2012 decided on 23/04/2012 case had held as under:-
"14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death a departure from this rule should be made only in rare and exceptional cases involving special circumstance. In our view, it will be nave to say that the wages or total emoluments/income of a person who is self- employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self- employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income Suit No. 17/12 Page No. 6/14 of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of this fact that with a view to meet the challenges posed by high cost of living, the persons falling on the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self- employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserved to be applied for calculating the amount of compensation".
However,in a case Rajesh & Ors (supra) decided by Three Hon'ble Judges bench of Hon'ble Supreme Court of India has laid down the age wise criteria for giving appreciation of future income. The relevant portion of the aforesaid judgment is reproduced as under:
11. Since, the court in Santosh Devi's case (Supra) actually 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 self-employed 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 self-employed 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 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 self- employed or on the 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.
Suit No. 17/12 Page No. 7/1420. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi (Supra). We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs. 25,00/- to Rs. 10,000/- in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case (supra), it was held that compensation for loss of consortium should be in the range of Rs. 5,000/- to Rs.10,000/-. In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least Rupees One Lakh for loss of consortium.
17. Ld. Counsel for respondent No.3 has vehemently argued that deceased are not entitled for any appreciation of income for the purpose of compensation towards future prospects.
18. On the other hand, Ld. Counsel for petitioners has argued that deceased is entitled for appreciation of income for the purpose of future prospects. He he has also relied upon judgment of Hon'ble High Court of Delhi in MAC APP. 405/2013 decided on 17/09/2013 in Raj Pal & Ors Vs. New India Suit No. 17/12 Page No. 8/14 Assurance Co. Ltd while disposing of petition has held as under-:
"2. Learned counsel appearing on behalf of the appellants/ claimants has submitted that at the time of the accident, the deceased was 29 years of age and in view of the recent judgment of the Full Bench of the Supreme Court in the case of Rajesh and Ors. Vs. Rajbir Singh and Ors. 2013(6) SCALE 563, the appellants / claimants are entitled for 50% towards future prospects.
3. On the other hand, learned counsel appearing on behalf of the respondent/ Insurance Company while relying upon the case of Union of India & ors. Vs. S. K. 2011 4SCC 589, and Reshma Kumari & Ors. Vs. Madan Mohan & Anr delivered in Civil Appeal No. 4646 of 2009 on 02.4.2013 has submitted that in view of the above judgments since the deceased was not in permanent job, therefore, the appellants/ claimants are not entitled for any compensation on account of future prospects.
"4. The admitted fact is that every salary / income gets increase due to the inflation. Every person after sometime earns more than what he was earning earlier, therefore, in my considered opinion, in every case whether a person is in a Government job or in private job, his income keeps on escalating. It is immaterial whether he/ she is in permanent job or temporary. Earlier majority of the employment was in public sector but in the changed scenario majority of the people finds employment in private sector. Nowadays, people are very frequently changing their employment. That does not mean they do not have permanent employment."
5. Therefore, for granting future prospects, if it is taken into consideration that person working in the private organizations are nto entitled for the same, being not in permanent job, then claimants in such cases are not entitled for the increase towards his salary/ income. Hence, recently keeping all these facts into view, the Full Bench of the Supreme Court has decided the case of Rajesh and others(supra) as under:-
Suit No. 17/12 Page No. 9/14After discussing the law of precedents, regarding future prospects, the Hon'ble High Court of Delhi in a judgment in 'ICICI Lombard General Insurance Co. Ltd. Vs. Angrej Singh & Ors'in MACA 846/2011 decided on 30/09/13 has held as under:
"26. While considering the case of Santosh Devi, the Apex Court did not feel to refer the matter to a Larger Bench. Therefore, it can be concluded that there is no contradictions in the finding of Sarla Verma and Santosh Devi, in turn the Apex Court extended the scope and ambit of Sarla Verma through Santosh Devi."
27. In view of above, this court is guided by the legal principles as set out in Reshma Kumari and Rajesh in order to assess the just compensation as it is envisaged in Section 168 of Motor Vehicles Act, 1988. In Reshma Kumari, the Apex Court affirmed the findings of Sarla Verma; and in Rajesh, the Hon'ble Supreme Court has agreed with the dictum of Santosh Devi. Specifically, for the assessment of future prospects in respect of the persons falling under the category of self- employment / fixed wages this court is guided by the dictum laid down in Rajesh. In my considered opinion, there is no contradiction in the dictum laid down by the Apex Court in the cases of Reshma Kumari and Rajesh."
Considering the abovesaid judgments, I am of the view, the income of the deceased is required to be appreciated for future prospects.
19. Since the deceased was about 36 years of age as on the date of accident, 50% of income towards the future prospects is required to be added in terms of aforesaid judgment in Angrej Singh (supra) and also Rajesh Vs. Rajbir Singh(supra). Hence after averaging out, the income of deceased comes out to be Rs. 9984/- ( Rs. 6656/- + 50% ).
20. It can very well be presumed in terms of the judgment of the Hon'ble Supreme Court of India in Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08 that the deceased might have been spending one- third of Suit No. 17/12 Page No. 10/14 Rs. 9984/-on his personal expenses as he had left behind two dependents. Therefore, after deducting one- third towards personal expenses, the loss of dependency per annual comes out to be Rs. 9984/- less Rs. 3328/-= Rs. 6656/-. The appropriate multiplier applicable is '15' (for the age group of 36 years to 40 years) as mentioned in Sarla Verma's judgment (Supra). The total loss of dependency comes out to be Rs. 11,98,080/- =(Rs. 6656/- 12 x 15 ).
21. In terms of the aforesaid judgment in Rajesh's case(supra), the Hon'ble Supreme Court of India has granted Rs. 25000/- towards funeral charges, Rs. 1,00,000/- towards loss of consortium and Rs. 1,00,000/- towards loss of care and guidance for minor children, accordingly, I award Rs. 25,000/- towards funeral charges; Rs. 1,00,000/- towards loss of care and guidance for minor children and I also award Rs. 10,000/- towards loss of estate. Therefore, in total, I hereby award a sum of Rs. 13,33,080/- in favour of the petitioners and against the respondents
22. RELIEF:
I award Rs. 13,33,080/- ( Rupees Threen Lacs Thirty Three Thlusand Eighty Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the petition i.e. 03/01/2012, in favour of the petitioners and against the respondents. Both petitioners shall have equal share in the award amount.
23. As per 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, 75% (Seventy Five Parcent) of the amount awarded to each petitioners No. 1 & 2 shall be kept in 5 FDRs of almost equal amount for a period of 1,2,3,4 & 5 years. No loan or advance shall be allowed against the said fixed deposit. Both petitioners can withdraw the interest quarterly from their FDRs.
Suit No. 17/12 Page No. 11/14APPORTIONMENT OF LIABILITY:
24. The insurer has taken the defence that driver of the offending vehicle was not holding valid driving license as on the date of accident.
25. In order to prove its defence, the insurance company has examined its officer SI Rambir Singh Yadav, IO of the case as R3W1. He has proved the DAR already Ex. PW1/3(colly.). He has further stated that the driving license of the driver of the offending vehicle was found to be genuine and valid for tractor.
26. The respondent No. 3/ insurer has also examined its officer Sh.
Siddhant Jaiswal. He has proved the insurance policy Ex. R3W2/1. He has proved the notice u/o 12 R 8 CPC vide Ex R3W2/2; postal receipt of the same are Ex. R3W2/3; photocopy of DL of respondent No.1 Sh. Kale Khan is Mark X.
27. Admittedly, the offending vehicle I.e. a Mahindra & Mahindra Tractor/Water Tanker bearing registration No. DL-1E-1980 was insured with the insurance company as on the date of accident. The insurance policy, Ex. R3W2/1 reveals the type of policy as 'Commercial vehicle-misc-- comprehensive insurance' for which the insured had already paid the premium. The Driving License mark X suggests that driver /R-1 was authorized to drive the vehicle LMV, MCWG, LMV-GV , Trans. IO SI Rambir Singh Yadav as R3W1 has also stated that DL of the respondent No.1 was found to be genuine and valid for tractor as on the date of accident.
28. Considering the testimony of the IO that the driving license of the driver of the offending vehicle was genuine and valid as on the date of accident and the type of policy i.e Commercial vehicle-misc--comprehensive insurance' and also considering the fact that the insurance company has failed to call any witness from the Transport Authority to prove the fact that the driver of the offending vehicle was not authorized to drive the aforesaid offending vehicle as on the date of accident, the plea of the insurance company is hereby rejected.
Suit No. 17/12 Page No. 12/1429. 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 under the intimation to this court. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
30. The Hon'ble High Court of Delhi in its latest judgment in MACA 682/05 dated 13.1.2010 'Union of India Vs. Nanisiri' have laid certain guidelines regarding depositing of award amount. 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 Branch 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. 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 Branch for opening the account.
31. 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.
32. The parties are at liberty to contact in State Bank of India through its nodal officer Mr. Chandra Mohan Ojha, Relationship Manager, Tis Hazari Branch,Delhi (Mb: 9412341376 and Tel. No. 011-23987332) for their convenience. File be consigned to Record Room.
Suit No. 17/12 Page No. 13/14A separate file be prepared for compliance report and put up the same on 08/04/2016.
Announced in the open court
On 9th of Feburary, 2016 ( RAJ PAUL SINGH TEJI )
Judge, MACT (WEST-01)
Delhi 09/02/2016
Suit No. 17/12 Page No. 14/14
Suit No. 17/12
09/02/2016
Present: None
Judgment announced vide separate sheets of even date. File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 08/04/2016.
( RAJ PAUL SINGH TEJI ) Judge, MACT (WEST-01) Delhi 09/02/2016 Suit No. 17/12 Page No. 15/14