Delhi District Court
Smt. Rani Devi W/O Late Sh. Shyam Kishor ... vs Rajender Kumar S/O Sh. Hem Raj (Driver) on 20 February, 2016
IN THE COURT OF RAJENDER KUMAR SHASTRI: PO:MACT1
(NORTH): ROHINI: DELHI
Suit No. 1241/08
1. Smt. Rani Devi W/o Late Sh. Shyam Kishor (Deceased)
2. Ms. Jyoti D/o Late Late Sh. Shyam Kishor
3. Ms.Roshni D/o Late Sh. Shyam Kishor
4. Ansu S/o Late Sh. Shyam Kishor
5. Kumkum D/o Late Sh. Shyam Kishor
6. Smt. Kusum W/o Sh. Parshu Ram Prasad(Mother)
7. Sh. Parshu Ram Prasad (father)
Petitioners no.1 to 6 are R/o 204/1,
Tilak Anchal Ekma, Distt. Saran Bihar and
Also at C/o Sh. V.K. Mishra, WP241,
Wazirpur Village, Delhi.
............................ PETITIONERS
VERSUS
1. Rajender Kumar S/o Sh. Hem Raj (Driver)
R/o RBlock, 1199, Mangol Puri
Delhi83.
2. Sh. R.C. Aggarwal (Owner) (through Lrs)
(i) Vimla Devi W/o Late Sh. R.C. Aggarwal
Suit no. 1241/08 Rani Devi Vs. Rajender Kumar page 1 of pages 15
(ii) Gopal Aggarwal S/o Late Sh. R.C. Aggarwal
(iii) Mahesh Aggarwal S/o Late Sh. R.C. Aggarwal
(iv) Arti D/o Late Sh. R.C. Aggarwal
(v) Komal D/o Late Sh. R.C. Aggarwal
R/o GH5 and 7, Flat No.110 Meena Bagh,
Pachim Vihar, Delhi.
3. Sh. Rakesh S/o Sh. Prem Chand (Owner)
R/o A3/279, Sultanpuri, Delhi.
4. National Insurance Co. Ltd. (Insurance Co.)
Regd. Office at:
3, Middletion street, Post box No.9220,
Kolkata, Delhi, Branch At2E/9, Jhandewalan,
Extension, New Delhi
.................RESPONDENT
Present: Petitioner in person with Sh. Prem Kumar Mishra, Advocate.
Mr. S.C. Aggarwal, Advocate for resp. no.2.
Mr. Krishan Kumar, Advocate for resp. no.3.
Mr. S.C. Sharma, Advocate for resp. no.4.
DATE OF INSTITUTION : 18.08.2008
JUDGMENT RESERVED ON : 18.01.2016
DATE OF JUDGMENT : 20.02.2016
Suit no. 1241/08 Rani Devi Vs. Rajender Kumar page 2 of pages 15
JUDGMENT
1. One Sh. Shyam Kishor died in a vehicular accident occurred on 02.06.2008, at about 09.15 PM, near drain (Ganda Nala) Sultanpuri Delhi. Petitioner Smt. Rani Devi is stated to be widow, baby Jyoti, baby Roshni, baby Kumkum daughters and Ansu son while Smt. Kusum and Parshu Ram Prasad are parents of said Shyam Kishor. According to petitioners, on that day i.e. 02.06.2008 Sh. Shyam Kishor was returning to their house situated at NDPL, DF/D66, HGI, Labour colony, Sultanpuri road, Near Railway Phatak, Nangloi from his work place i.e. Bhayana Builders, Haiderpur, Delhi. He was on a bicycle. At about 09.15 PM, when he was crossing bridge over drain, a vehicle Toyota Qualis No. HR38H3528 came there being driven by Sh. Rajender Kumar (resp. no.1) rashly and negligently and hit the bicycle of victim from behind. Due to forceful impact, Sh. Shyam Kishor was thrown out of his bicycle and suffered sever injuries, including injury on brain. The bicycle of victim was totally damaged. The offending vehicle struck against a rickshaw also being peddled by one Manhender Chaudhary after hitting bicycle of Sham Kishore. The Suit no. 1241/08 Rani Devi Vs. Rajender Kumar page 3 of pages 15 driver fled away from spot, leaving offending vehicle there. Sh. Shyam Kishor was removed to Sanjay Gandhi Hospital, Mangol Puri, Delhi from where he was referred to Sushrut Trauma Center. The victim succumbed to his injuries and died on 14.06.2016. Contending that said accident took place due to rash and negligent driving of vehicle No. HR38H3528 by resp. no.1, the offending vehicle was owned by resp. no.2 and 3 and insured with resp. no.4, petitioners claimed a sum of Rs. 15,00,000/ as compensation from respondents alongwith interest @ 18% per annum from the date of accident. An interim compensation of Rs. 50,000/ was also prayed for.
2. Respondents contested claim by filing WS . According to resp. no.2 (R.C. Aggarwal) he had already sold the offending vehicle to one Sh. Rakesh Kumar (resp. no.3). The latter i.e. resp. no.3 in his written statement did not dispute that he purchased offending vehicle from resp. no.2 though claimed that he was not liable to pay any compensation as driver i.e. resp. no.1 was having a valid driving license and his vehicle was duly insured. Respondent no.4 in its written statement averred that it was not liable to pay compensation unless and until, it is proved that the driver of offending vehicle was having valid Suit no. 1241/08 Rani Devi Vs. Rajender Kumar page 4 of pages 15 and effective driving license, at the time of accident. It is further the plea of respdt no. 4 that the accident happened due to sheer negligence of victim himself, if he was diligent enough, the accident could have been avoided.
3. On the basis of pleadings of parties, following issues were framed on 24.02.2010.
1. whether the deceased Sh. Shyam Kishore s/o Sh. Parashuram Prasad expired due to the fatal injuries received in the roadside accident occurred on 02.06.2008 at about 9.15 pm on Ganda Nala at Sultanpuri, Delhi due to rash and negligent driver of R1/Driver of offending bus No. HR38H3528? OPP.
2. Whether the petitioners are entitled to compensation as prayed for, if so to what extent and from whom of the respondents? OPP.
3. Relief.
4. In order to prove their case, petitioners examined Smt. Rani Devi (petitioner no.1) as PW1 and Sh. Ashok Jha as PW2 Respdt no.4 examined Sh. Ashok Kuamr as R4W1 and Ms. Rakhi Sharma as R4W2. None from other respondents opted to lead any evidence.
1. 5. I heard Ld. Counsels appearing on behalf of parties as Suit no. 1241/08 Rani Devi Vs. Rajender Kumar page 5 of pages 15 described above. Above my findings issuewise are as under: ISSUE NO. 1:
Smt. Rani Devi ( petitioner no. 1) in her affidavit Ex.PW1/A reiterated facts of their case as described earlier. Sh. Ashok Jha ( PW2) claimed himself to be an eye witness of accident. It is sworn on oath by this witness that on 02.06.08, a cyclist was going towards Sultanpuri from Mangolpuri side. He was going on correct side of road and at normal speed. At about 9.15p.m, when he reached near drain (Ganda Nala) Sultanpuri, Delhi, a vehicle (Tyota Qualis) no. HR38H3528 came there, being driven on very high speed, rashly and negligently. It hit said cyclist from back side, without blowing any horn. After hitting said bicycle, said vehicle struck against a rickshaw . The cyclist fell down on road and suffered injuries. He was taken to Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi by PCR Van. Driver of Tyota Qualis ran away from spot, leaving behind his vehicle. He came to know later on that said cyclist was Shyam Kishor and died during treatment on 14.06.08. In his crossexamination, it is disclosed by Sh. Ashok Jha ( PW2) that driver of offending vehicle was apprehended by public and was handed over to the police. He i.e. PW2 as well as Suit no. 1241/08 Rani Devi Vs. Rajender Kumar page 6 of pages 15 rickshaw pullar also suffered injuries but minor ( simple). The victim was not acquainted with him, prior to the accident. I have no reason to disbelieve testimony of PW1 or PW2 particularly the latter who claims himself to be an eye witness of accident.
Apart from deposition of said witnesses , the fact that such an accident took place is verified from copy of FIR put on file, which was recorded on statement of given by said rickshawpullar. The fact that Sh. Shyam Kishore suffered injuries is supported from his MLC from Sanjay Gandhi Memorial hospital and also death certificate. Considering all this, it is well established on file that victim Shyam Kishore died due to injuries suffered by him in a vehicular accident caused due to rash and negligent driving of vehicle no. HR38H3528 by respondent no. 1. This issue is, therefore, decided in favour of petitioner and against the respondents.
ISSUE NO. 2:
It is contended by Ld. counsel for respondent no. 4 (National Insurance Company) that his client was not liable to pay compensation as respondent no. 1 was having a driving licence which was valid for LMV (NT) and motorcycle, while the offending vehicle no. Suit no. 1241/08 Rani Devi Vs. Rajender Kumar page 7 of pages 15 HR38H3528 was a commercial vehicle.
Respondent no. 4 examined one Ashok Kumar, a clerk from Transport Authority, Rohini Zone II as R4W1. This witness brought summoned record. According to which, a driving licence was issued in the name of Rajender Kumar ( respondent no. 1) on 19.09.05. Same was valid upto 18.09.2025 and was for category LMV ( NT) and motorcycle. Respondent no. 4 also examined Ms. Rakhi Sharma its Administrative officer as R4W2. According to this witness, vehicle no. HR38H3528 was insured with respondent no. 4 from 19.09.07 to 18.09.08 in the name of R.C. Aggarwal. Notice U/o 12 rule 8 CPC was issued to Sh. Rajender ( driver), Sh. R.C. Aggarwal ( owner) as well as to Sh.Rakesh(subsequent purchaser), copies of notice are Ex.R4W2/D & Ex.R4W2/E & Ex. R4W2/F. Said vehicle was commercial and licence issued to driver was LMV (NT).
It is not in dispute that offending vehicle was duly insured with respondent no. 4. Even if, respondent no. 1 was authorized to drive LMV (NT) and motorcycle. It is not denied that the offending vehicle ( Tyota Qualis) is a light motor vehicle. It is not clear that said vehicle was being used as commercial vehicle or not. Even then, if respondent no. Suit no. 1241/08 Rani Devi Vs. Rajender Kumar page 8 of pages 15 4 thinks that resdpt no.1 was not authorized to drive said Toyata qualis, same is is free to initiate separate proceedings against the owner / driver to recover the amount of compensation. May I refer here a case titled as National Insurance Company Ltd Vs. Swaran Singh and Others AIR 2004 SC 1531 where dealing with similar plea taken by the Insurance Company, following was observed by the Apex Court, " Note of the fact is also to be taken that whereas in Section.3 the words used are "effective licence." It has been differently worded in Section. 149 (2) i.e. 'duly licensed'. If a person does not hold an effective licence as on the date of the accident, he may be liable for prosecution in terms of Section. 141 of the Act but Section. 149 pertains to insurance as regard third party risks. A provision of a statute which is penal in nature vis avis a provision, which is beneficent to a third party must be interpreted differently.
The words 'effective licence' used in Section3, therefore, cannot be imported for subsection (2) Suit no. 1241/08 Rani Devi Vs. Rajender Kumar page 9 of pages 15 of S . 149 of the Motor vehicles Act. The Words 'duly licensed" used in subsection (2) of S149 are used in past tense. The Insurance Companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle: the burden of proof where for would be on them.
As discussed above, it is well proved that Sh. Shyam Kishore died in a vehicular accident due to rash and negligent driving of vehicle no. HR38H3528 by respondent no. 1, it did not remain in dispute that said vehicle was earlier owned by Sh. R.C. Aggarwal but the latter transferred it in favour of Sh. Rakesh ( respondent no. 3) and again that it was duly insured with respdt no. 4 at the time of accident, petitioners who are LRs of victim i.e. deceased Sham Kishore, they are well within their rights to claim compensation. Respdt no. 4 being insurer is primarily liable to pay the amount. Trite it to say that originally, the claim petition was filed by Smt. Rani Devi ( widow) but on an application filed by said Suit no. 1241/08 Rani Devi Vs. Rajender Kumar page 10 of pages 15 petitioner U/o 1 rule 10 read with section 151 CPC, other LRs were allowed to be impleaded as petitioners.
According to Smt. Rani ( PW2) her husband was 36 yrs of age, at the time of accident and he was working as Security Guard with M/s A2Z Maintenance and Engineering Services ( P ) Ltd. and was getting Rs. 5,000/ p.m as salary, besides payments for over time. If he had not died, his income would have been more than double. He was quite energetic, farsighted person and was leading a peaceful and comfortable life .
There is no evidence except bald statement given by Smt. Rani to verify that her husband was getting salary of Rs. 5,000/ p.m, and extra payments for over time. If the income of victim Shyam Kishore is taken to be equal to minimum wages of an unskilled labourer, he can be presumed to be earning Rs. 3826/ P.M at the relevant time (being non matriculate). As mentioned above, according to petitioner the income of Sh,. Shyam Kishore would have been doubled , if he had not died untimely. This tribunal takes judicial notice of the fact that due to inflation or otherwise, value of rupee is decreasing day by day, even minimum wages of labours are being enhanced constantly. For example, Suit no. 1241/08 Rani Devi Vs. Rajender Kumar page 11 of pages 15 same were Rs. 3826/ PM for unskilled (non matriculate) labourer from 01.02.2008 and were enhanced to Rs. 3876/ from 01.08.2008 to Rs. 4127 from 1.02.2009 and now these are 10,010/ w.e.f 01.04.2015. An addition of 50% is thus taken to calculate actual future earning of victim, in other word, loss of dependency to the petitioners.
Having seven deponents upon him, the victim can be presumed to be spending 1/5th of his income as his personal expenses. Victim being 37 yrs of age, a multiplier of 15 is taken. Counting in this way loss of dependency comes to Rs.8,26,416/ (3826+1913=5739.01147.8=4591.2x12x15). This amount of Rs.8,26,416/ is granted to the petitioners as loss of dependency.
Apart from said amount, petitioners are allowed a sum of Rs. 1 lac for loss of love and affection towards the deceased, Rs. 20,000/ to petitioner no.1 (widow) as loss of consortium Rs.20,000/ for last rites and ceremonies and Rs. 20,000/ as loss of estate, making a total of Rs.9,86,416, detail of which is given as under: Loss of dependency: Rs.8,26,416/ Loss of love & affection: Rs.1,00,000/ Funeral expenses: Rs. 20,000/ Loss of consortium: Rs. 20,000/ Suit no. 1241/08 Rani Devi Vs. Rajender Kumar page 12 of pages 15 Loss of Estate: Rs. 20,000/ Total Rs. 9,86,416/ This issue is therefore decided in favour of petitioners and against respondents.
Issue no.3 (relief)
6. Petition in hands is allowed. Resp. no.4 (National Insurance Company) is directed to pay Rs. 9,86,416/ to the petitioners as compensation in this case, within 30 days from today, along with interest @ 9% per annum from the date of filing this petition till realization of amount. 1/3rd of total amount of compensation plus Rs. 20,000/ (loss of consortium) be given to petitioner no.1 i.e. Widow and remaining amount be divided amongst other petitioners equally.
7. Petitioner no. 2 (Baby Jyoti) Petitioner no. 3 ( Baby Roshni) Petitioner no. 4 (Master Ansu) and Petitioner no. 5 ( Baby Kumkum) are stated to be minors, amount coming to their share be invested in fixed deposits of any nationalized bank, till they attain age of majority. Their mother i.e. Petitioner no.1 will be entitled to withdraw amount of interest, on these fixed deposits, time to tim. 20% of the amount coming to share of petition no.1 be invested in fixed deposit of any nationalized bank for a period of 2 years, 20% of remaining for 4 Suit no. 1241/08 Rani Devi Vs. Rajender Kumar page 13 of pages 15 years and 20% of remaining amount for a period of 5 years. Petitioner No. 6 and 7 are stated to be senior citizens . No order is passed for investments of their share in any fixed deposit etc. Resp. no.4 is asked to deposit amount of award before this tribunal, with advance notice to the petitioners.
File be consigned to record room.
ANNOUNCED IN THE OPEN (RAJENDER KUMAR SHASTRI) Court on 20th February 2016 PO,MACT- NORTH,ROHINI, DELHI 20th February 2016 Suit no. 1241/08 Rani Devi Vs. Rajender Kumar page 14 of pages 15 Suit No. 1241/08 20.02.2016 Present: Petitioner in person with Sh. Prem Kumar Mishra, Advocate.
Mr. S.C. Aggarwal, Advocate for resp. no.2.
Mr. Krishan Kumar, Advocate for resp. no.3.
Mr. S.C. Sharma, Advocate for resp. no.4.
Vide separate judgment, dictated and announced in open court today, petition is disposed of.
File be consigned to record room.
Copy of this order be given dasti to both parties, free of costs.
(RAJENDER KUMAR SHASTRI) PO,MACT- NORTH,ROHINI, DELHI 20.02.2016 Suit no. 1241/08 Rani Devi Vs. Rajender Kumar page 15 of pages 15