Delhi District Court
Sh. Harcharan Singh vs I. Sh. Kunj Kumar S/O Sh. Lakhami Kumar on 13 March, 2015
IN THE COURT OF SHRI NIKHIL CHOPRA,
PO: MACT (SE01), SAKET COURTS, NEW DELHI
Suit No. 91/14
FIR No. 327/12
PS : New Friends Colony
Har Charan Singh V. Kunj Kumar & Ors.
Sh. Harcharan Singh
S/o Gyani Karnail Singh
Sector49, Faridabad, Haryana
IInd Address :
1098, Houseing Board Colony
Sector18, Faridabad, Haryana .... Petitioner
VERSUS
i. Sh. Kunj Kumar S/o Sh. Lakhami Kumar
R/o Village Kumbh, P.S. Barda
Distt. Jaunpur, UP ...Driver/Respondent no.1
ii. Sh. Abdul Hasan S/o Md. Alladin
R/o 113, Nai Basti, Okhla
New Delhi110025 ...Owner/Respondent no. 2
iii. The Oriental Insurance Co. Ltd.
DO23, 2/1314, Sarai Jullena
Near Surya Hotel, New Friends Colony
New Delhi. ... Insurer/Respondent no.3
Date of filing of DAR petition : 16.02.2013
Date on which Award/Judgment was reserved: 28.02.2015 Date on which Award/Judgment was pronounced: 13.03.2015 Suit No.91/14 Har Charan Singh V. Kunj Kumar & Ors. Page...1 of 18 AWARD
1. This order disposes of a Detailed Accident Report filed in FIR No. 327/12 PS New Friends Colony as well as a claim petition petition under Section 166 Read with Section 140 of the Motor Vehicle Acts, 1988, claiming compensation on ground of demise of Smt. Jyoti W/o Sh. Harcharan Singh, in a vehicular accident dated 30.12.2012.
2. The facts, in brief, as mentioned in the petition are that on 30.12.2012, Smt. Jyoti was travelling with her husband on a motorcycle bearing no. HR51AM7695 as a pillion rider and heading towards Paschim Vihar, New Delhi from Faridabad. At about 12:30pm, when they reached near Modi Mill Flyover, Mathura Road, Delhi, a Dumper bearing No. HR55H9584, being driven by respondent no. 1 at a high speed, rashly and negligently came from behind and hit the motorcycle with a great force. It is stated that as a result of the said accident, the victim as well as the petitioner Harcharan Singh fell on the road. It is stated that Mrs. Jyoti was removed to Apollo Hospital, Delhi, where she was declared dead by doctors, the same day. The postmortem is stated to have been conducted at AIIMS, New Delhi.
3. An FIR No. 327/12 is stated to have been registered with Suit No.91/14 Har Charan Singh V. Kunj Kumar & Ors. Page...2 of 18 PS New Friends Colony, under Section 279/337/304A IPC against respondent no.1. It is stated that the offending vehicle was seized on the spot.
4. It has been claimed that the victim was Matriculate and was providing multifarious services to her family as a housewife. It is stated that she was also imparting tuitions at home and earning Rs.10,000/ per month and that had she not died in the accident, her earnings would be increased in future. It is stated that the accident was caused by rash and negligent driving of respondent no.1 and that the respondent no.1, being driver and respondent no.2, being owner and respondent no.3, being insurer are jointly and severally liable for compensation to the petitioner. A sum of Rs. 20 lakhs together with interim award of Rs. 50,000/ is claimed by the petitioner.
5. Respondent no.1 had appeared at the time of filing of the DAR but stopped appearing thereafter. On the filing of the petition, the respondent no. 1 had appeared through Counsel and filed Vakalatnama but even thereafter ceased to appear. It transpires that respondent no.1 was also directed to be served through Publication, and was proceeded exparte on 16.09.2014, in view of his non appearance after the publication.
6. Respondent no.2 filed its Written Statement claiming that the respondent no.2 has been made a space goat to pay compensation, Suit No.91/14 Har Charan Singh V. Kunj Kumar & Ors. Page...3 of 18 while denying the contents of the petition.
7. Respondent no.3 - M/s Oriental Insurance Company Ltd. filed its Written Statement, reserving rights to statutory defences. It has been admitted that the vehicle bearing No. HR55H9584 was insured in the name of respondent no.2 while policy no. 272100/31/2012/4215, for the period 15.03.2012 to 14.03.2013.
8. Following issues were framed on 16.09.2014: i. Whether Jyoti W/o Sh. Har Charan Singh sustained fatal injuries/died in a vehicular accident dated 30.12.2012, involving Dumber bearing no.
HR55H9584, driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? ii. Whether the petitioner is the legal heir of the deceased, and is entitled to any compensation? If so, to what extent and from whom?
iii. Relief.
9. Petitioner examined himself as PW1 and deposed through affidavit that on 30.12.2012, he along with his wife were going to Paschim Vihar, New Delhi from Faridabad, on their motorcycle bearing No. HR51AM7695 and at about 12:30pm, when they reached near Modi Mill Flyover, Mathura Road, Delhi, a Dumper bearing No. HR55H9584, being driven by respondent no. 1 at a high speed and in rash and negligent manner, came from behind and hit the motorcycle with a great force. He deposed that as result both fell on Suit No.91/14 Har Charan Singh V. Kunj Kumar & Ors. Page...4 of 18 the road and the victim received fatal injuries. He deposed that the victim was removed to Apollo Hospital, Delhi, where she was declared dead, the same day and that a postmortem was also conducted at AIIMS, New Delhi. He further deposed that an FIR No. 327/12 under Section 279/337/304A IPC was registered against respondent no.1 with PS New Friends Colony. He deposed that his wife was Matriculate and used to provide multifarious services to the family, as a housewife and was also engaged in part time tuition at home and earning Rs. 10,000/ per month. He deposed that she was around 23 years of age at the time of the accident and her earnings would have increased in future, herself being a healthy and hard working person. He deposed that he had suffered, not only in terms of financial losses but also in terms of mental pain, agony, loss of love and affection. He deposed that he has spent Rs. 1 lakh on conveyance and last rites of the deceased. He proved his own PAN Card as Ex.PW1/1 (OSR); his driving licence as Ex.PW1/2 (OSR); marriage certificate as Ex.PW1/3 (OSR); Secondary School Examination certificate as Ex.PW1/4 (OSR); original bills of hospitalisation as Ex.PW1/5 (Colly) and detailed accident report filed in FIR No. 327/12 as Ex.PW1/6 (Colly).
10. In his crossexamination by Ms. Lalita Bajaj, Ld. Counsel for M/s Oriental Insurance Co. Ltd., he stated that the accident took place just after two months of his marriage. He stated Suit No.91/14 Har Charan Singh V. Kunj Kumar & Ors. Page...5 of 18 that he has not filed any proof of her earnings and denied that he has falsely claimed that she was earning from tuitions, in order to maximise the compensation. He denied that she was herself not adequately qualified for imparting tuitions. He admitted that she was not working as teacher. He denied that he was not financially dependent upon her and stated that he was earning Rs. 13,000/ per month at the time of the accident. He denied that he is only entitled to compensation on ground of loss of consortium or that the bills placed by him are manipulated. He denied that he has falsely claimed a sum of Rs. 1 lakh towards conveyance and last rites.
11. No witness has been examined in RE.
12. I have heard learned counsels for the Parties and have gone through the relevant records.
13. Time now to deal with the issue.
ISSUE NO. 1
Whether Jyoti W/o Sh. Har Charan Singh sustained fatal injuries/died in a vehicular accident dated 30.12.2012, involving Dumber bearing no.
HR55H9584, driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3?
14. PW1 has categorical stated that on 30.12.2012 while they were heading towards Paschim Vihar from Faridabad on their motorcycle bearing No. HR51AM7695 and while they reached near Suit No.91/14 Har Charan Singh V. Kunj Kumar & Ors. Page...6 of 18 Modi Mill Flyover, Mathura Road, Delhi, a Dumper bearing No. HR55H9584, which was being driven by respondent no. 1 at a high speed, rashly and negligently, hit their motorcycle from behind. Witness has not been crossexamined by respondent no.1&2 side, as nobody appeared for respondent no.1 or respondent no.2. Nothing could be elicited in the crossexamination by Ld. Counsel for the Insurance Company so as to render the testimony of PW1 as incorrect or incredible.
15. Final report in case FIR No. 327/12 also shows that a triable case under Section 279/337/304A IPC has been found to be existed against respondent no.1. Coupled with the fact that the respondent no.1 was duly served and had omitted to participate in the proceeding, failed to crossexamine PW1 or to otherwise prove the version of the petitioner as incorrect, this Tribunal is of the view that the petitioner side has been able to prove rash and negligence act on the part of the respondent no.1. Even otherwise, it has been held by Hon'ble Supreme Court that 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 injury or death to a human being or damage to property, would make the petition maintainable under Suit No.91/14 Har Charan Singh V. Kunj Kumar & Ors. Page...7 of 18 section 166 and 140 of the Motor Vehicle Act.1 No roving inquiry into rashness or negligence on the part of the driver, is to be made. In the case of Basant Kaur, it was observed that registration of criminal case against driver of offending vehicle is enough to record finding that the driver of the offending vehicle is responsible for causing the accident. The issue no. 1 is accordingly decided in favour of the Petitioner. ISSUE NO.2:
Whether the petitioner is the legal heir of the deceased, and is entitled to any compensation? If so, to what extent and from whom?
16. Since, the Issue No. 1 has been decided in favour of the petitioner, his entitlement as to compensation needs to be worked out.
17. Ld. Counsel for the petitioner has contended that the victim was Matriculate and used to earn Rs.10,000/ per month from tuition and that she was also providing multifarious services of a housewife. He has relied upon the decision of the Hon'ble High Court of Delhi in the matter of Royal Sundaram Alliance Insurance Co. Ltd. V. Master Manmeet Singh & Ors. in MAC.APP.590/2011, in support of his contention.
18. Ld. Counsel for the Insurance Company, on the other hand, has vehemently opposed the contention of the petitioner side and 1 Basant Kaur and others vs. Chattar Pal Singh and Ors.- 2003 ACJ 369 MP (DB) Suit No.91/14 Har Charan Singh V. Kunj Kumar & Ors. Page...8 of 18 has relied upon the decision of the Hon'ble High Court of Delhi in the matter of Keith Rowe V. Prashant Sagar and others in 2011 ACJ 1734, contending that the petitioner is not entitled to any compensation on account of loss of dependence as the petitioner was himself earning and there was no dependent on his wife and having regard to the fact that the marriage had taken place just two months before the date of accident, the wife could not have been working. She has also contended that the victim was herself a Matriculate and not enough qualified for imparting tuition and further that the contention of the victim imparting tuition prior to her death has gone totally unsubstantiated as there is no credible evidence placed on record.
19. In the matter of Keith Rowe V. Prashant Sagar and others in 2011 ACJ 1734, the Hon'ble High Court of Delhi has observed as under :
"We may summarise the principles enunciated, thus :
(i) The law contemplates two categories of damages on the death of a person. The first is the pecuniary loss sustained by the dependent members of his family as a result of such death.
The second is the loss caused to the estate of the deceased as a result of such death. In the first category, the action is brought by the legal representatives, as trustees for the dependants beneficially entitled. In the second category, the action is brought by the legal representatives, on behalf of the estate of the deceased and compensation, when recovered, forms part of the assets of the estate. In the first category of cases. The Tribunal in exercise of power under section 168 of the Act can Suit No.91/14 Har Charan Singh V. Kunj Kumar & Ors. Page...9 of 18 specify the persons to whom compensation should be paid and also specify how it should be distributed. (Note: For example, if the dependants of a deceased Hindu are a widow aged 35 years and mother aged 75 years, irrespective of the fact that they succeed equally under Hindu Succession Act, the Tribunal may award a larger share to the widow and a smaller share to the mother, as the widow is likely to live longer). But in the second category of cases, no such adjustments or alternation of shares is permissible and the entire amount has to be awarded to the benefit of the estate. Even if the Tribunal wants to specify the sharing of the compensation amount, it may have to divide the amount strictly in accordance with personal law government succession, as the amount awarded and recovered forms part of the estate of the deceased.
(ii) Where the claim is by (sic claimants who are) dependent, the basis for award of compensation is the loss of dependency, that is, loss of what was contributed by the deceased to such claimants. A conventional amount is awarded for loss of expectation of life, under the head of loss to estate.
(iii) Where the claim is by the legal representatives of the deceased who were not dependent on the deceased, then the basis for award of compensation is the loss to estate, that is, the loss of savings by the deceased. A conventional sum for loss of expectation of life is added.
(iv) The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalizing 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 dependent claim loss of dependency, and in cases where the claimants who are not dependent claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to the estate. The Suit No.91/14 Har Charan Singh V. Kunj Kumar & Ors. Page...10 of 18 method of selection of multiplier is however the same in both cases".
20. In the matter of Royal Sundaram Alliance Insurance Co. Ltd. V. Master Manmeet Singh & Ors. in MAC.APP.590/2011, the Hon'ble High Court of Delhi, while deciding a bunch of cases observed as follows :
"To sum up, the loss of dependency on account of gratuities services rendered by a housewife shall be :
(i) Minimum salary of a Graduate where she is Graduate.
(ii) Minimum salary of a Matriculate where she is a Matriculate.
(iii) Minimum salary of a nonMatriculate in other cases.
(iv) There will be an addition of 25% in the assumed income in (i), (ii) and (iii) where the age of the homemaker is upto 40 years; the increase will be restricted to 15% where her age is above 40 years but less than 50 years; there will not be any addition in the assumed salary where the age is more than 50 years.
(v) When the deceased homemaker is above 55 years but less than 60 years; there will be deduction of 25%; and when the deceased homemaker is above 60 years there will be deduction of 50% in the assumed income as the services rendered decrease substantially. Normally, the value of gratuities services rendered will be NIL (unless there is evidence to the contrary) when the homemaker is above 65 years.
(vi) If a housewife dies issueless, the contribution towards the gratuitous services is much less, as there are greater chances of the husband's remarriage. In such cases, the loss of dependency shall be 50% of the income as per the qualification stated in (i), (ii) and (iii) above and addition and deduction thereon as per (iv) and (v) above.
(vii) There shall not be any deduction towards the personal and Suit No.91/14 Har Charan Singh V. Kunj Kumar & Ors. Page...11 of 18 living expenses.
(viii) As an attempt has been made to compensate the loss of dependency, only a notional sum which may be upto Rs.
25,000/ (on present scale of the money value) towards loss of love and affection and Rs. 10,000/ towards loss of consortium, if the husband is alive, may be awarded.
(ix) Since a homemaker is not working and thus not earning, no amount should be awarded towards loss of estate".
21. Having regard to the fact that the petitioner has failed to show that the victim was imparting tuitions or earning to the tune of Rs.10,000/, the Tribunal is of the view that the victim was merely a housewife and not gainfully employed. However, considering that the services of a housewife cannot be undermined and considering the guidelines of the Hon'ble High Court of Delhi in Royal Sundaram Alliance Insurance Co. Ltd. V. Master Manmeet Singh & Ors., I am of the view that the petitioner is entitled to loss of dependence.
22. Since, the victim was a Matriculate, the minimum salary of a Matriculate at the time of accident i.e. Rs.8,814/ is taken to be her salary for the purpose of compensation.
23. The date of birth of the deceased is recorded as 12.07.1989, implying thereby that the deceased was 23 years of age and as such addition of 25% to the assumed income needs to be granted in terms of Royal Sundaram Alliance Insurance Co. Ltd. V. Master Manmeet Singh & Ors. The salary, thus, comes to Suit No.91/14 Har Charan Singh V. Kunj Kumar & Ors. Page...12 of 18 Rs.11,017.50/.
24. Considering the age of the deceased and the guidelines laid down by the Hon'ble High Court of Delhi in the matter of Sarla Verma V. DTC, the multiplier of 18 needs to be applied.
25. The loss of dependence, thus, comes to Rs.23,79,780/. However, considering the fact that the deceased was issueless and as such 50% needs to be deducted, in terms of direction of the Hon'ble Court in Royal Sundaram Alliance Insurance Co. Ltd. V. Master Manmeet Singh & Ors., the net loss of dependence accordingly comes to Rs.11,89,890/.
26. A young person has lost her life in an accident, leaving behind her husband and parents. No amount of money can fill in the void, however, considering the fact that the pain and sufferings are to be allayed, a sum of Rs.1,00,000/ is awarded to the petitioner towards loss of consortium.
27. A sum of Rs.25,000/ is awarded to the petitioner towards expenses of funeral/last rites.
28. The petitioner, thus, is entitled to following compensation: Suit No.91/14 Har Charan Singh V. Kunj Kumar & Ors. Page...13 of 18 Head of Amount compensation (in Rs.) Loss of dependency 11,89,890/ Funeral expenses 25,000/ Loss of Consortium 1,00,000/ Total 13,14,890/
29. Respondent no.1 is the driver and principal Tort Feasor. Respondent no.2 is the joint tort feasor and the respondent no.3 is indemnifier/insurer. They are jointly and severally liable to pay the compensation to the petitioners.
30. No statutory defence has been proved by the insurer. There is nothing on record to show that the insurance company is not liable for the compensation. As such, the insurance company, being the indemnifier/insurer of the offending vehicle at the time of the accident, is directed to deposit the said compensation in the name of the petitioners together with interest @ 9% per annum from the date of filing of the DAR petition i.e. 16.02.2013 till the actual date of payment, with SBI, Saket Court Complex Branch, New Delhi, within 45 days, failing which the insurance company would also be liable to pay interest @ 12% per annum for the period of delay. Suit No.91/14 Har Charan Singh V. Kunj Kumar & Ors. Page...14 of 18 Relief
31. Accordingly, a compensation of Rs.13,14,890/ is awarded to petitioner with interest @ 9% per annum from the date of filing of DAR i.e. 16.02.2013.
32. Respondent no.3/Insurance company is directed to directly deposit the cheques with State Bank of India, Saket Court branch within 45 days from today and in case of default, penal interest @ 12 % per annum shall be payable for the period of delay. The Bank shall be obliged to open a savings account in the name of Petitioner, upon completion of necessary formalities by the Petitioner.
33. Having regard to the status and age of the petitioner, the compensation is directed to be appropriated in the manner, hereinafter provided for, in a tabulated form : Sr Name of the Amount Amount to be Amount to be Interest Whether no Petitioner / Awarded released to the deposited /maintained in the payable or liable to be Claimant Petitioner/ FDR with break up and credited in the A/c of the Claimant duration Petitioner/Claimant on monthly basis Suit No.91/14 Har Charan Singh V. Kunj Kumar & Ors. Page...15 of 18 1 Harcharan Rs. Rs2,50,000/ Rs.10,64,890/ + interest amount Yes Singh 13,14,890/ accrued on Rs.13,14,890/ i.e. + the amount awarded to Interest @ Petitioner 9% accrued Amount of Term on the said the fixed amount Deposit awarded to 20% of the 3 years the above Petitioner amount 20% of the 5 years above amount 30% of the 7 years above amount 30% of the 9 years above amount
34. The Bank Account/Fixed Deposits are subject to and to be regulated by the following conditions :
a) Interest on the fixed deposit be paid to the Petitioner/ Claimant by automatic credit of interest in their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
b) Half yearly statements of account to be filed by the bank, with this court.
c) Bank to issue Photo Identity card to Petitioner/ Claimant for facilitating their identity and the withdrawal from the said account be permitted subject to due verification and submission of age proof of the minors.
d) No cheque book be issued to Petitioner/Claimant without Suit No.91/14 Har Charan Singh V. Kunj Kumar & Ors. Page...16 of 18 permission of the Court. Original Pass book shall be given to the Petitioner/Claimant together with the copies of the FDRs.
e) Original Fixed Deposit Receipts to be retained by the bank in safe custody and be handed over to Petitioner/Claimant on expiry of the term/maturity of the Fixed Deposit.
f) No loan, advance or withdrawal to be permitted/allowed in respect of the Fixed Deposits, without the permission of the Court.
g) The Bank Shall transfer the savings account to any other branch of the State Bank of India, as per the request and convenience of the Petitioner/Claimant.
h) Petitioner/Claimant to furnish all relevant documents for opening of the saving Bank Account and Fixed Deposit Receipts, with the Branch Manager, State Bank of India, Saket Courts Complex Branch.
i) Copy of this award be given to the respondents as well as to the petitioner free of cost. Copy of this award be also sent to SBI, Saket Court Complex Branch for Record and compliance.
35. List on 30.04.2015 for compliance.
Announced in open Court.
Dated: 13.03.2015 (NIKHIL CHOPRA)
PO: MACT01 (SE)/SAKET COURTS,
NEW DELHI
Suit No.91/14 Har Charan Singh V. Kunj Kumar & Ors. Page...17 of 18
Suit No. 91/14
FIR No. 327/12
PS : New Friends Colony
Har Charan Singh V. Kunj Kumar & Ors.
13.03.2015
Present : None
Vide my separate Award, the petition stands disposed off in terms thereof. Copy of this award be given to the respondents as well as to the petitioner free of cost.
List on compliance on 30.04.2015 (NIKHIL CHOPRA) PO: MACT01 (SE)/SAKET COURTS, NEW DELHI/13.03.2015 Suit No.91/14 Har Charan Singh V. Kunj Kumar & Ors. Page...18 of 18