Delhi District Court
) Hemant S/O. Late Sh. Kalyan vs ) Praveen S/O Sh. Pyare Lal on 31 January, 2012
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IN THE COURT OF SH. D.K.MALHOTRA, ADDL. DISTRICT & SESSIONS
JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS
TRIBUNAL, ROHINI COURTS, DELHI.
(MACT Case No. 311/10/06)
1) Hemant S/o. Late Sh. Kalyan
2) Chanchal W/o. Munish Kumar D/o. Late Sh. Kalyan
R/o D50, Karampura, New Delhi
3) Usha W/o Manoj D/o. Late Sh. Kalyan
R/o Z171, Prem Nagar, Z Block, Kirari
Suleman Nagar, Delhi.
4) Laxmi D/o Late Sh. Kalyan
5) Poonam D/o Late Kalyan
6) Sonu D/o Late Kalyan
(Petitioner No. 5 & 6 through their brother petitioner no.1
petitioner no.1, 4, 5 & 6, all R/o RZ157, Hari Enclave
Sultanpuri, Delhi. Petitioners
Versus
1) Praveen S/o Sh. Pyare Lal
R/o C20, Rajiv Nagar, Sultanpuri, Delhi
IInd address: Nayak Bhawan, Khan Market, New Delhi110003
2) National Commission For Schedule Tribes
6th Floor, Lok Nayak Bhawan, Khan Market,
New Delhi Respondents
Date of institution01.08.2006
Date of decision31.01.2012
(Application U/s 166 and 140 of Motor Vehicles Act
for grant of compensation)
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JUDGMENT:
1. Petitioners being the LRs of deceased stated in the petition that on 29.06.2006 at about 8.00 p.m. when the deceased Kalyan was traveling in car no. DL2CB2519 driven by Sushil Kumar and when they reached at Prahladpur Road, near Prem Adhar Nursery, Sultanpuri it was hit by ambassador card bearing no.
-2-DL2CH4692 which was driven rashly and negligently by respondent no. 1. One Brijesh Rai was sitting on the front seat of said Maruti car and deceased Kalyan was sitting on the back seat of the said Maruti Car and their car was proceeding from the side of Narela towards Sultanpuri when the offending vehicle i.e. Ambassador car no. DL2CH4692 came from the side of Sector24, Rohini being driven in a rash and negligent manner and hit the said Maruti car. At the time of accident the driver of the above said ambassador car was driving his car at a very high, excessive, reckless, dangerous, uncontrollable speed in a rash and negligent manner. Further it is alleged that this motor accident took place due to rash and negligent driving by respondent no.1 and on account of fault of respondent no.1. The said ambassador car hit the rear door of Maruti car. On being hit by the said ambassador car the deceased suffered serious injuries and was rushed to Braham Shakti Hospital where the doctors declared the deceased as brought dead.
2. A criminal case under section 279/304A IPC was registered against respondent no. 1 vide FIR no. 1014/06 in police station Sultanpuri. The number of the above said car is mentioned in the FIR as the offending vehicle. Name of the respondent no. 1 is mentioned in the FIR as the driver of the offending vehicle.
3. In the petition it was stated by the petitioners that the deceased was about 52 years old, he was hale and hearty and was not suffering from any ailment. The longevity in the family is quite high and had the deceased not met with this accident, he would have normally lived till about 75 years of age and hence this accident cut short the life of the deceased by a very long span.
4. Respondent no.1 in reply stated that accident did not take place because of his fault and deceased died due to sole negligence on the part of vehicle no. DL2CB2519 which came from the subway with heavy speed without taking precaution as per M.V. Act. Subsequently, after impleading as party to the suit -3- Respondent No.2 took same plea. On the basis of pleadings of the parties, following issues were framed on 05.03.2007 by my ld. Predecessor:
1. Whether on 29.06.2006 at 8.00 p.m. Car no. DL2CB219 was hit by car no. DL2CH4692 on Prahladpur road which resulted in death of Kalyan? OPP
2. Whether accident was occurred by negligent driving on the part of driver of car no. DL2CB2579? OPR1
3. Whether petition is bad for nonjoinder and misjoinder of necessary parties? OPR1
4. Whether petitioners are entitled to compensation as prayed for, if so, from which of the respondent? OPP
5. Relief.
5. Following issues were again framed on 17.08.2009 after the name of respondent no. 2 was impleaded as party:
1. Whether the deceased Sh. Kalyan s/o Late Kishan Lal expired due to the fatal injuries received in the roadside accident occurred on 29.06.2006 at about 8.00 p.m. at Prahladpur Road, near Prem Adhar Nursing Chowk, Sultanpuri, Delhi due to rash and negligent driving of R1 of offending vehicle no.
DL2CH4692 (Ambassador Car)? OPP
2. Whether the petitioners are entitled to compensation as prayed for, if so to what extent and from which of the respondents?OPP
3. Relief.
6. Certified copies of criminal case record has been filed on record and exhibited by the statement of counsel for petitioner. The petitioner in support of his case examined Hemant, son of the deceased who proved documents Ex.PX1 and Ex.PX2. Brijesh is the eye witness of the accident, who stated that on 29.06.2006 they were coming in a Maruti Car from Bhor Garh and going to Sultanpuri. Their car -4- no. DL2CB2519 was being driven by Sushil Kumar and he was sitting on the front side of above mentioned car whereas Sh. Kalyan was sitting on the back side of the said Maruti Car. In the meanwhile when they reached in the said Maruti Car near Prem Adarsh Nursery Chowk on Prahladpur one ambassador car came from left hand side i.e. from the side of Sector24, Rohini and hit their car at a very high speed. They were crossing the chowk and were having a green light signal to proceed ahead whereas the light for traffic coming from Sector24 was red. The ambassador car which came and struck against their Maruti Car was 4692. The abovesaid ambassador car was being driven at a very high speed and in a negligent manner. The ambassador car hit their car at the rear door. Deceased Kalayan Singh suffered injuries in the accident and said Maruti Car was damaged. Deceased Kalyan was removed to Braham Shakti Hospital where the deceased Kalyan was declared brought dead. He denied the suggestion that the road on which they were traveling was a narrow road, infact it was a broad road. They blow horn before crossing the main road. He knew the deceased from the year 1989. He was not a heart patient.
7. The respondent no. 1 in support of his case examined Praveen Kumar initially driver of the offending vehicle. He stated that he was proceeding from Sector24 towards Sector25 and when they reached near Prem Nursery Chowk and he was crossing, suddenly one vehicle came from Prahladpur Road road Luptroad, it came at a very high speed. It tried to cross his vehicle from different side. He was going on his lane suddenly it tried to cross his vehicle from front side but could not. He tried to save him but could not. After that he got his vehicle stopped at a short distance. Out of the other car five people came out and one was injured. Again said he was not injured but he was perplexed. Foam came out of his mouth. He stated that he felt that his death taken place due to heart attack. He was not at fault. In crossexamination, he admitted that the accident took place on 29.06.2006 and his car bearing registration no. DL23CH4692 was seized by the police on the same day. He was arrested on the date of the accident itself. He admitted the suggestion that -5- the offending vehicle is owned by National Commission for Schedule Tribes and he is still working in that office. He did not lodge any complaint against his false implication in this case to any higher authority of the police but volunteered that he lodged a complaint with his office on the next date of the accident. Further stated that he had not filed any complaint before the concerned court of Metropolitan Magistrate. His vehicle was also damaged in the accident. Again he was examined at the instance of the National Commission for Scheduled Tribes as witness again. He admitted that Brijesh was sitting on front side of the Maruti Car. He was falsely implicated in this case. He proved the original copies of information under RTI and the envelop as Ex.R2W1/1 and Ex.R2W1/2. The speed of the Maruti Car at the time of alleged accident as per him was at the limited speed of 60 km/hour and car was not under the control of the driver. He stated that speed of his car was about 40 km/hour. The head light of the car was on and he was not at fault. He did not hit the Maruti Car. The Maruti Car collided with the ambassador car due to fault of Maruti car driver. He could not brought in crossexamination the rule as per which the speed of the vehicle should have been 10 km/hour. He denied the suggestion that the car had not suffered any damage in the accident in question. He has not made any complaint in writing to higher police authority for registering a case against driver of the Maruti car. He admitted that he is facing trial. He admitted that he had seen the Maruti car at a distance of one meter only and width of the road was 8 lane. He stated that vehicle collided with each other from front side. He stated that he had tried to avoid the accident and even taken his car on the kachha road.
8. I have heard the Ld. counsel for the parties and have perused the entire records. My findings on the issues are as follows: Issue No. 1:
1. Whether the deceased Sh. Kalyan s/o Late Kishan Lal expired due to the fatal injuries received in the roadside accident -6- occurred on 29.06.2006 at about 8.00 p.m. at Prahladpur Road, near Prem Adhar Nursing Chowk, Sultanpuri, Delhi due to rash and negligent driving of R1 of offending vehicle no.
DL2CH4692 (Ambassador Car)? OPP
9. The onus to prove issue no.1 was on the petitioners. It is argued by Ld. counsel for respondent that as per the settled law in order to maintain the petition U/s 166 M.V. Act petitioner has to prove the negligence. The petitioners have to prove that the accident took place due to rash and negligent driving of the offending vehicle and cited in his support the judgment of Hon'ble Supreme Court reported as I(2011) ACC 907 titled Kusum Lata & Ors. vs. Satbir & Ors. wherein it was held that claimants are required to prove the case as required to be done in a criminal trial and further relied upon the judgment of Hon'ble High Court in case cited as Surinder Kumar Sehgal vs. New India Assurance Co. Ltd. 2011 ACC 908 wherein it was held that:
"Direct evidence of negligence is not always available particularly in accident cases, Court has to consider indirect and circumstantial evidence on record".
Further he cited judgment of Supreme Court reported as Kaushnuma Begum & Ors. vs. New India Assurance Co. Ltd. & Ors. Civil Appeal no. 6 of 2001 decided on 03.01.2001 wherein it was held that "Motor Vehicle Act 1988, section 165 Claims Tribunal - Jurisdiction of - Not restricted to decide claims arising out of negligence in use of motor vehicles - Negligence being only one of the species of cause of action for making claim - Other premises for such cause of action are also there."
Further it was held that claim based on strict liability as denied in Rylands v. Fletcher - Whether rule of strict liability can be adopted in claims for compensation made in respect of motor accidentsHeld (Yes)can be followed atleast until any other new principle can be evolved or until legislation provides differently."
-7-10. Against this Ld. counsel for respondents relied upon the judgment citied as 150 (2008) Delhi Law Times 33 in Rajendra Jha vs. Arti Rohatgi & Anr. wherein it was held that:
"it is only under Section 163A, use of offending vehicle but not negligence on part of offending vehicle is required to be established"...
And failure to prove rash and negligent driving is sufficient to dismiss the claim of the petitioner.
Further Ld. counsel for the respondents cited judgment titled as Gurappa vs. Goudappagouda & Anr. 2009 ACJ 293 mentioning therein where the petitioner is failed to prove the negligence, the petition was required to dismissed. There is another judgment of Jharkhant High Court in case cited as 2009 ACJ 295 titled Archana Goel & Ors. vs Nav Ratan Balasia & Anr. wherein it was held that maintainability of - Negligence - variance between pleadings and evidence - claim was required to be dismissed by the Tribunal.
He further relied upon the judgment of High Court cited as 2009 ACJ 442 titled Gopal Chandra Dey vs. New India Assurance Co. Ltd. wherein it is held that "Section 163A of Motor Vehicle Act which is applicable to the facts of the present case since present petition is not based on use of the vehicle only.
The principles to be followed in the case of motor accident claims has been laid down by the Hon'ble High Court of Guwahati in case cited as Renu Bala Paul and Ors. vs. bani Chakraborty and Ors. 1999 ACJ 634 wherein it is held that:
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the standard proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take -8- or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society.
In N.K.V. Bros (P) Ltd. vs. M. Karumai Ammal & Ors. (1980) 3 SCC 475, Hon'ble Supreme Court has observed as under: "In Road accidents are one of the top killers in our country, especially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
11. It is the case of the petitioner that in the light of abovesaid judgment of Hon'ble Supreme Court the testimony of the eye witness in this case is to be examined. The evidence of the eye witness who was owner of the vehicle was corroborated by filing the charge sheet. The respondent no. 1/driver of the offending vehicle has admitted the presence of the eye witness at the front seat of the car which hit against the car of respondent no.1. PW2 Brijesh Rai specifically stated that ambassador car was being driven in very high speed in negligent manner and Ambassador hit their car at rear door and deceased Kalyan suffered injuries in the accident and said Maruti car also damaged. He denied the suggestion that it was a narrow road and stated that it was a broad road. This fact is corroborated by the statement of the driver of the ambassador car who is testified by R2 and stated the road on which the accident took place is 89 lanes. He denied the suggestion that -9- they did not blow horn but was not listened to. In his crossexamination RW1/driver of the ambassador car stated that when he reached Prem Adhar Nursery Chowk and he was crossing, suddenly one vehicle came from, it came at very high speed and tried to cross his vehicle from different side and he was on his lane. Suddenly he tried to cross his vehicle from front but could not, he tried to save him but could not. He admitted in his crossexamination that he was arrested at the spot on the same day. The car was seized by the police. The car belongs to National Commission of Schedule Tribes and he is still working in this and did not lodge any complaint for false implication to any higher authority. He did not lodge any complaint with the Magistrate for causing the accident due to rash and negligent driving by Maruti car.
12. Again he was examined as R2W1 and in his crossexamination he stated that he had seen the Maruti car at a distance of one meter only before the accident. The width of the road was 8 lane. The vehicle collided with each other from front side. Further he vol. stated that he tried to avoid the accident and even took his car on kachha road. The mechanical inspection shows as against the case of the driver Praveen Kumar of Maruti car that no damage was caused to the Maruti car extensive damage was caused to the ambassador car. He also belied the statement made by ambassador car driver Praveen Kumar R1 that vehicle collided with each other from front side as against this this testimony of claimant eye witness was present in the car he admitted it and stated that ambassador car hit at the rear portion of the Maruti car which fact is corroborated by mechanical inspection report. In the mechanical inspection report of the ambassador car specifically recorded front bumper and bodyguard of the car was damaged, front left side head light, body and fander damaged and front left side wheel system damaged, bonnet damaged from left side and engine radiator, fan and system damaged and front wind screen glass crack/broken and front right side fander and bumper damaged.
-10-13. Against this arguments of the counsel for respondent no. 2 National Commission of Scheduled Tribes that eye witness of the claimants stated that the light was green and light of the road from which ambassador car was coming was red and driver of the ambassador car jumped the red light driving the vehicle at fast speed in a rash and negligent manner. The counsel for the respondents has placed on record the reply of RTI application that no traffic signal is installed near Prem Adhar Nursery Chowk only some portion of this stretch (coming from Prahlad Pur towards Pooth Kalan) is covered from divider instead of whole stretch. This information was sought on 03.09.2010 and the accident took place on 29.06.2006 at about 8.00 p.m. in night. Whereas as per the case of PW2 the ambassador car was coming from left hand side from the side of Sector 24, Rohini and not from Prahladpur side and information given to the respondent is as on 03.09.2010 and no information has been sought as to the position of the traffic signal on 29.06.2006 at the time of accident, is against the testimony of this eye witness. There is the testimony of driver of the offending vehicle who to save his job had made contradictory statement at every turn of page changing his story from one place to another which story has been falsified by mechanical inspection report and other material on record. There is no explanation on record why driver of the ambassador car is silent without any demur facing trial for causing the accident due to rash and negligent driving of his vehicle or he has lodged any complaint to any higher authorities against false implication. He has not lodged any complaint against driver of the Maruti Van which as per his case caused accident due to rash and negligent driving. On the top of it he has gone to say that his vehicle do not suffer any damage. Whereas, the mechanical inspection report shows that extensive damage was caused to the ambassador car seen.
14. In the light of these observations, the story of the ambassador car driver and respondent seems to be an afterthought to wriggle out all the precarious position in which the ambassador car driver has brought them in by driving the vehicle in rash and negligent manner at the high speed causing death of the driver -11- due to injuries suffered by him in this accident. Hence this issue is decided on the basis of discussions made above in favour of the petitioner and against the respondents.
Issue no. 2: Whether the petitioners are entitled to compensation as prayed for, if so to what extent and from which of the respondents?OPP
15. Deceased expired at the spot of accident. There are no expenses of medical treatment. It is stated that the deceased used to take contracts from entertainment authorities and used to have them getting licenced in respect of joy rides. He has no income in respect of joy rides. He was proprietor of Sharma Amusement, Delhi and used to do liason work for obtaining various types of licenses from some official entertainment authorities for running Merry Go Rounds and other joy rides and used to earn Rs. 10,000/ p.m. He used to pay entertainment tax. He was sole bread earner of the family, but no documentary evidence in respect of income of deceased has been placed on record by the petitioners. In the absence of any income proof of the deceased, the deceased is presumed to be selfemployed and not having income more than minimum wages on the date of accident i.e. 29.06.2006. He is presumed to be a semi skilled worker. Accident took place on 29.06.2006 and as per minimum wages chart, the semi skilled person presumed to be earning sum of Rs. 3,437/ per month. Thus this amount has to be taken into consideration while counting monthly income of the deceased.
16. Deceased was of the age of 52 years at the time of death as per the petition. Since deceased was self employed and was not having permanent fixed income, so in view of the judgment of Supreme Court given in Sarla Verma vs. DTC 2009 ACJ 1298, hence future prospect relating to increase of minimum wages are not taken into account.
-12-17. Deceased had left behind one son and five daughters, out of which two daughters namely Chanchal and Usha are married. Laxmi, Poonam and Sonu are unmarried, having the age of 20 years, 16 years and 13 years. Hence as per the judgment of Sarla Verma, married daughters are not generally dependent on the deceased father as per their own family and income. In the absence of any evidence on contrary, they cannot be presumed to be dependent. The wife has predeceased to him. Hence the number of dependents on the date of death was one son and three daughters i.e. four persons and out of this, the deduction of 1/4th is to be taken as the dependents were between 4 to 6 years. Hence considering the age of the deceased to be about 52 years, the multiplier of 11 is to be used as per Sarla Verma's case. Therefore, after deducting 1/4th of the amount from monthly income of Rs. 3,437/, the net amount of dependency per month comes to Rs. 2,578/. Accordingly, in this case, loss of dependency is assessed at Rs. 3,40,296/ (Rs. 2,578 x 12 x 11).
18. Petitioners have not brought on record any document regarding expenses incurred on funeral and last rites of the deceased nor in the petition it is alleged. It is a judicial noticeable fact that normally some expenses are incurred upon cremation, Chotha or Theharvin ceremonies etc., hence I deem it proper to grant lump sum Rs. 10,000/ as funeral charges.
19. Petitioners are also entitled to loss of estate and loss of estate represented to all the daughters and son, so the petitioners are entitled to Rs. 60,000/ (Rs. 10,000/ each to all the petitioners) as loss of estate. Loss of love and affection as well as loss of company of the deceased is awarded to all the petitioners i.e. total sum of Rs. 1,00,000/ {i.e. Rs. 20,000/ each to son (petitioner no.1) and three unmarried daughters (petitioners no. 4, 5 & 6) and Rs. 10,000/ each to married daughters (petitioner no. 2 & 3)} after relying upon the judgment of Delhi High Court in case Sajha vs. National Insurance Co. Ltd. 2010 ACJ 627.
-13-20. There is no insurance of the offending vehicle as it was a government/autonomous body vehicle and respondent no. 2 National Commission For Schedule Tribes has not brought on record any other cogent evidence to point out that it is not liable to pay compensation amount as assessed by the court. Hence respondent no. 2 National Commission For Schedule Tribes alone becomes entitled to pay entire compensation amount.
21. In view of the above discussions, this issue is decided in favour of petitioners by holding that they are entitled to get the following total compensation from the respondent no. 3 only.
1). Loss of dependency================ Rs. 3,40,296/
2). Funeral charges================== Rs. 10,000/
3). Loss of estate=================== Rs. 60,000/
4). Loss of love and affection etc.=========== Rs. 1,00,000/ Total Rs. 5,10,296/ Since petitioners have already received Rs. 50,000/ as an interim compensation so after deducting this amount, they are now entitled to get net Rs. 4,60,296/ as compensation from the respondent no. 2 National Commission For Schedule Tribes along with interest at the rate of 7.5% p.a. on this amount from the date of institution of the petition i.e. 01.08.2006 till realization.
Issue no. 3 (Relief):
22. On the basis of findings given above, present petition is disposed off. Respondent no. 2 National Commission For Schedule Tribes is directed to pay sum of Rs. 4,60,296/ to the petitioners along with interest at the rate of 7.5% p.a. from -14- 01.08.2006 till this amount is fully paid. The amount be paid to the petitioners within 30 days by the Respondent no. 2 National Commission For Schedule Tribes with which respondent no. 1 was employed as driver and was on official duty.
23. Out of the said amount, Rs. 1,00,000/ each be deposited in the form of FDR in the name of three unmarried daughters i.e. petitioners no. 4, 5 & 6 to be released to them at the time of their marriage. Sum of Rs. 25,000/ each be paid to married daughters i.e. petitioner no. 2 & 3 as they are entitled to only loss of estate and loss of love & affection. Remaining amount along with all accrued interest on the award amount shall be paid to the petitioner no. 1. Out of his share, sum of Rs. 1,00,000/ be deposited in his name in the FDR for a period of 5 years with liberty to withdraw quarterly interest. However, none of these FDRs shall allow being encashed without permission of the court and no loan or advance shall be given on those FDRs. It is further ordered that all the FDRs in the names of petitioners be got prepared from Union Bank of India, Sector9, Rohini, Delhi branch.
Copy of this judgment be given to petitioners and counsel for respondent no. 2 National Commission For Schedule Tribes for information and compliance. File be consigned to record room.
Announced in the open (D.K. MALHOTRA)
Court on 31.01.2012 JUDGE, MACT (OUTERII)
DELHI