Delhi District Court
Yatender Kaushik vs M/S R.S. Industries on 12 July, 2007
1
IN THE COURT OF SH. A.S. YADAV, PO-MACT,
PATIALA HOUSE COURTS, NEW DELHI.
PETITION NO.:- 1232/04
DATE OF INSTITUTION:-25.4.1990
IN THE MATTER OF:-
Yatender Kaushik, s/o Late Sh. P. N. Kaushik,
525, Chirag Delhi, New Delhi.
...Petitioner
Versus
1. M/s R.S. Industries,
D-21, Jangpura Extension,
New Delhi.
2. Sh. Baljeet Singh, s/o Sh. Moti Singh,
R/o D-21, Jangpura Extn., New Delhi.
3. New India Assurance Co. Ltd.
C-19, Vasant Vihar Market,
New Delhi-57.
4. Ashok Kumar, s/o Sh. Late P.N. Kaushik,
C-52, 3rd Floor, Panchsheel Vihar,
Malviya Nagar, New Delhi-17.
5. Janak Sharma, D/o Late Sh. P.N. Kaushik,
w/o Dharambir Sharma, village Tilpath, Haryana.
6. Nalini, D/o Late Sh. P.N. Kaushik,
w/o Anil Sharma, E-5, Krishna Nagar, Delhi.
7. Sunil, S/o Late Sh. Yog Raj,
Block 2/13, Sector-I, Pushp Vihar, New Delhi-17.
8. Jotishna, w/o Yograj,
Block 2/13, Sector-I, Pushp Vihar, New Delhi-17.
9. Prabhakar Sharma,
r/o 64, Madangir, New Delhi
...Respondents
Arguments heard on : 11.7.2007 Date of decision: 12.7.2007 2 AWARD This claim petition was initially filed by Smt. Rajkali in respect of death of her son, Brijesh Kaushik, who sustained fatal injuries in the accident which took place on 27.2.90. It is averred that deceased was Electrician by profession and was earning Rs.1800/-pm. He was 25 years of age and was unmarried. It is further averred that deceased used to support the petitioner, his younger brother and his sister and petitioner lost bread earner, who was financially supporting her as well as her younger son and daughter.
2. This petition was filed on 25.4.90 and during the pendency of petition, Smt. Rajkali died on 13.7.97. Accordingly, her legal heirs were brought on record. The younger son with whom deceased/petitioner i.e Rajkali was residing was also dependent upon the deceased (Brijesh Kaushik) and was made petitioner. The other brothers and sisters were impleaded as R4 to R7. R8 and R9 are the son and widow of late brother of the deceased and R10 is the husband of late sister of the deceased.
3. R1 and R2 are the owner and driver and R3 is insurer. R1 and R2 in the WS took the plea that accident was not caused due to negligence of R2 and in fact the vehicle driven by R2 was not involved in the accident. It is averred that the deceased was crossing the road and was hit by a three wheeler scooter. As a result, he was thrown over and he fell on the bonut of the offending vehicle and thereafter on the 3 road. Deceased was removed to the hospital with the help of one person and the son of R2. In the meantime, the TSR fled away from the spot and R2 could not note down its number.
4. R3 in the WS took the plea that R1 got his vehicle insured by playing fraud and concealing the material fact. The accident took place on 27.2.90 at about 2:20PM whereas the investigation revealed that insured approached the concerned Development Officer on 27.2.90 in the evening and obtained the cover note concealing the fact that vehicle has already caused accident and since the policy was obtained by playing fraud, the insurance company is not liable.
5. From perusal of the pleadings following issues were framed:
ISSUES:
1. Whether Brijesh Kaushik died due to fatal injuries sustained in the accident on 27.2.90 due to rash and negligent driving of vehicle no. DBL-4770 on the part of R2-Bajeet Singh?
2. Whether petitioner as well as respondents no.4 to 10 are entitled to compensation and from whom?
3. Relief.
6. ISSUE NO.1 It is not disputed by R1 and R2 that R2 was driving the vehicle at the time of accident. It is also not disputed that the offending vehicle was present at the place and time of accident. The plea of R2 is that the accident was not caused due to his negligence 4 and in fact the vehicle driven by him was not involved in the accident. It is averred that the deceased was crossing the road and was hit by a three wheeler scooter. As a result, he was thrown over and he fell on the bonut of the offending vehicle and thereafter on the road. Deceased was removed to the hospital with the help of one person and the son of R2. In the meantime, the TSR fled away from the spot and R2 could not note down its number.
7. It is proved on record that a charge sheet was filed against R2 for committing an offence u/s 279/304A IPC. Once the factum of accident has been admitted by R2 and the charge sheet has been filed against R2 for committing an offence u/s 279/304 IPC then onus was on R2 to prove that no accident was caused by the offending vehicle rather the accident was caused by a TSR driver and on account of that, the deceased was thrown on the bonut of the offending vehicle and thereafter deceased fell down but R2 for the reasons best known to him did not enter the witness box to prove the plea taken by him in the WS. The negligence on behalf of R2 is proved beyond doubt. The amount of negligence required to be proved in these proceedings are only by way of preponderance of probabilities.
8. It is proved that accident was caused due to the negligence of R2. Even otherwise, it is not necessary to establish negligence on the part of the driver of the offending vehicle. The 5 reference is placed on the case of Kaushnuma Begum vs. New India Assurance Co. Ltd., 2001 ACJ 4 28.
Here it is useful to refer to the case of Paramjit Kaur and another vs. Murarilal Shankya and others, 2005 ACJ 401. The para 10 of the judgment is reproduced as under:
"As regards the rash and negligent driving is concerned, burden was upon the driver of the offending vehicle to prove that there was no negligence on his part. Driver has not entered the witness-box. Even otherwise, under section 166 of the new Motor Vehicles Act it is sufficient to prove that there was an accident and question of rash and negligent driving is not essential. Section 166 of the Motor Vehicles Act provided that the application for compensation arising out of an accident of the nature specified in sub- section (1) of Section 165 shall be filed. Section 165 (1) provides that the State Government may, by notification in the official Gazette, constitute one or more Motor Accidents Claims Tribunals for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising , or both. Thus, if the accident has arisen out of use of motor vehicle then the claimants are entitled for compensation. It is not necessary to prove rash and negligent driving. Since it is admitted by the owner and driver that the accident has arisen out of use of offending truck driven by the respondent No.1, we hold that the claimants are entitled for compensation."9. ISSUE NO.2 & 3
It is not in dispute that initially the claim petition was filed by the mother of the deceased but she has specifically stated that she as well as the younger brother of the deceased and the sister were financially dependent upon the deceased. Even PW-1 in his cross 6 examination stated that except him all his brothers and sisters were elder to the deceased. In fact, except the petitioner, Yatender Kaushik (PW-1) and Respondent no.7, Nalini, all other were residing separately. They were married and were not financially dependent upon the deceased.
10. The deceased was 25 years of age at the time of his death. The mother of the deceased died after seven years of filing of the petition. The appropriate multiplier in this case will be 7. Even otherwise, deceased would not have supported his brother and sister beyond that period. It is averred that deceased was earning Rs.1800/-pm and he was Electrician. Since father of the deceased predeceased and the dependents were mother, younger brother and sister, it was natural for him to contribute towards his family. But there is nothing to prove that deceased was Electrician. Under these circumstances, the income of the deceased is to be seen as per minimum rates of wages prevalent at that time. At the relevant time, the minimum rates of wages used to be Rs.767/-pm (Say Rs.800/-). Deceased was bachelor. He would not have contributed more than half of his income towards his mother, brother and sister. So, the dependency comes out to be Rs.400/-pm. The loss on account of dependency comes out to be Rs.400X12X7=33,600/-.
11. Since the accident took place in 1990, I award a sum of 7 Rs.2000/- for funeral expenses and a sum of Rs.15,000/- towards loss of love and affection.
12. In all, I award a sum of Rs.50,600/- (inclusive of interim award of Rs.25,000/- passed on 21.4.95) in favour of the petitioner and against respondents on account of their liability being joint and several. This petition was filed on 25.4.90. The petitioner examined the first witness on 20.11.2006. The petitioner was largely responsible for the delay. He is entitled to interest only for a period of five years @ 6% p.a and till realisation of the award amount. At the time of filing of petition, only dependents were petitioner and R7. R7 during the course of proceedings got married. 70% of the award amount be given to petitioner and 30% be given to R7.
13. Though Insurance company took a plea that the policy was obtained by playing fraud after the accident has taken place but they have not examined any witness to show that policy was taken by playing fraud. The copy of the policy is placed on record which nowhere specifies the time at which the policy was taken. It only shows the period of policy i.e from 27.2.90 to 26.2.91.
14. Since the vehicle in question was duly insured with R-3, New India Assurance Co. Ltd., R-3 is directed to deposit compensation 8 amount within one month and in case of delay future interest will be deducted from the salary of the employee of respondent no.3, who will be responsible for the delay.
Order dictated and announced (A.S. YADAV) in the open court on12th July, 2007 Judge/MACT/ New Delhi