Delhi District Court
) Sh. Jai Bhagwan S/O Sh. Amar Singh vs ) Sh. Om S/O Sh. Umed Singh on 2 April, 2011
1
In the court of Ashwani Sarpal, Addl. District & Sessions
Judge cum Presiding Officer, Motor Accident Claim
Tribunal, Rohini Courts, Delhi.
(MACT Case no. 481/10/09)
1) Sh. Jai Bhagwan S/o Sh. Amar Singh
2) Pradeep S/o Sh. Jai Bhagwan
3) Monika D/o Sh. Jai Bhagwan
4) Mohit S/o Sh. Jai Bhagwan
(Petitioners no. 2 to 4 minors through
their father and natural guardian
petitioner no. 1 Sh. Jai Bhagwan)
All R/o H. No. 135, V & P Chandpur Kala, Delhi
-----Petitioners/Claimants
vs.
1) Sh. Om S/o Sh. Umed Singh
R/o Delhi Road Kharkhoda, Sonipat (Haryana)
2) Sh. Mukesh Kumar S/o Sh. Maha Singh
R/o V & P Barohi, Distt. Sonipat (Haryana)
3) Future Generali India Insurance Co. Ltd.
8th Floor, Gopal Dass tower,
Barakhamba Road, New Delhi
-----------Respondents
Date of Institution-----4-2-2009
Date of decision--------2-4-2011
(Application u/s 163-A of Motor Vehicles Act
for grant of compensation)
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2 Judgment:-
On behalf of respondent no. 3 insurance company, order of High Court date 7-12-2010 in CM(M) 1297/2010 titled as New India Assurance Company vs. Ram Niwas is cited in which it is held that insurance company cannot be compelled to enter into settlement and if it does not agree for any settlement then the matter shall be decided on merits. This decision appears to have been cited on account of the order passed by this court on 16-3-2011 by which certain act and conduct of the respondent no. 3 was not appreciated. I am not disputing the correctness of this order of the High Court but certainly the conduct shown by the insurance company shall be taken note of while deciding the present matter on merits.
Petitioner no. 1 being husband and petitioners no. 2 to 4 being minor children of the deceased Smt. Meena Kumari filed the present petition claiming compensation of Rs. 20 lakhs on account of death of deceased in road accident. It is alleged that on 19-1-2009 at about 10.15 a.m., petitioner no. 1 along with the deceased was going from Auchandi Boarder to Kharkhoda in TSR No. HR-46A-4050. Respondent no. 1 driver of the TSR was driving it at a fast speed, rashly and negligently despite objections of the passengers and due to high and uncontrollable speed, the TSR overturned at Garhi Mor and deceased received grievous injuries and died before reaching hospital. A criminal case under section 279/304-A IPC was registered against respondent no. 1 vide FIR no. 32/09 in police station Kharkhoda (Sonipat).
Petitioners alleged that deceased was a house wife aged about 30 years and was doing the work of dairy farming also. They claimed compensation from respondents being driver, owner and insurance company of the offending vehicle jointly and severally.
Respondents no. 1 and 2 in their joint written statement totally denied happening of an accident due to any negligence on part of driver and alleged that half of the road was dig up near the spot of accident and in order to save the TSR from a car coming at fast speed from front side, it fell in some 3 pitch. Respondent no. 3 insurance company admitted that offending TSR was insured with it, but it tried to avoid its liability on some routine technical grounds. On the basis of pleadings of the parties, following issues were framed on 19-8-2010 by my ld. Predecessor;
1) Whether on 19.01.2009 at about 10:15 a.m. at Garhi Nizampur, Sonipat, the death of deceased Meena Kumari was caused by the use of vehicle bearing registration No. HR-46A- 4050? OPP
2) Whether the petitioner is entitled to compensation, if any from whom and to what extent? OPP
3) Relief.
In order to prove their case, petitioner no.1 examined himself only as PW-1. Respondents no. 1 and 2 did not choose to lead any evidence in defence and their evidence was closed by order. Counsel for respondent no. 3 also gave statement and closed the evidence of the insurance company. I have heard counsel for the parties and gone through the record as well as written arguments along with some case laws submitted by counsel for respondent no. 3. My decision on the above mentioned issues is as under;
Issue no. 1:-
PW-1 is an eye witness of the accident who was accompanying deceased in same offending TSR. He in his statement disclosed how and in which manner the accident had taken place. He specifically alleged that the TSR in question was being driven by respondent no.1 at fast speed and passengers even restrained for it but he did not listen. Due to fast speed, respondent no. 1 lost control of TSR and it overturned. Nothing has come in his cross examination to show that he is unreliable witness. No suggestion was given to PW-1 that he was not accompanying with the deceased in the same 4 TSR or had not seen the accident. The copy of the charge sheet filed by the police shows that accident had taken place due to rashness and negligence of the respondent no. 1 TSR driver and PW-1 has been cited as one of the eye witness of the accident as well as first informant. Respondents no. 1 and 2 did not lead their own evidence so their version that no accident had taken place due to any fault on the part of the driver of TSR as alleged in their written statement is not established and this conduct of respondents itself is sufficient to draw a presumption that accident was caused due to negligence of the TSR driver. Post mortem report shows that death of deceased took place in road accident and she died at spot. Nothing more is required to be proved in this proceeding under section 163-A of Motor Vehicle Act. Otherwise also during pendency of the proceedings, insurance company showed its intention to settle the matter and offered compensation amount to the petitioners without adding any future prospects and interest from which it can be prima facie held that respondent no. 3 had virtually no defence and indirectly admitted the case of the petitioners that they are entitled to some compensation. So in view of the above discussions, this issue is decided in favour of petitioners and against the respondents.
Issue no. 2:-
The present petition has been filed under section 163-A of Motor Vehicle Act and thus the second schedule of the Act shall govern most of the conditions pertaining to award of compensation. Counsel for the respondent no. 3 cited case laws Oriental Insurance Company Ltd. vs. Hansrajbhai V. Kodala (2001) 5 SCC 175, Deepal Girishbhai Soni vs. United India Insurance Company Ltd. 2004 ACJ 934 and Harendra Nath Halder vs. New India Assurance Company II (2005) ACC 3 (Calcutta) in which certain principles relating to proceedings under section 163-A of the Act are defined.5
Deceased had expired before reaching the hospital and there are no medical bills. Petitioners have not brought on record any document regarding expenses incurred on funeral and last rites of the deceased and thus they are entitled to fixed sum of Rs. 2,000/- towards funeral expenses. They are also awarded fixed sum of Rs. 2,500/- as loss of estate. Petitioner no. 1 being the husband of the deceased is also entitled to fixed sum of Rs. 5,000/- towards loss of consortium.
Petitioners no. 1 being the husband and petitioners no. 2 to 4 being the children of the deceased must have suffered mental trauma, shock, pain and sufferings due to death of deceased which cannot be assessed in terms of money. Petitioners no. 2 to 4 are the minor children in between the age of 5 to 11 years and have been deprived of the love and care of their mother so in such situation, while relying upon the decision of Delhi High Court in case Barnabas Yuhanna vs. Narayan Chaudhary 2010 ACJ 2628, I grant nominal token sum of Rs. 40,000/- towards loss of love and affection and loss of company of the deceased (Rs. 10,000/- each to four petitioners).
In the petition, it is alleged that deceased was earning sum of Rs. 3,300/- per month as she was doing the work of Dairy Farming but there is no documentary evidence regarding the work and income of the deceased. It is also not disclosed from which place, the deceased was doing the alleged work of dairy farming. In the petition, petitioners have not disclosed any income of the deceased and thus the averment made in the affidavit of PW-1 that she was earning sum of Rs. 3,300/- per month from this job is liable to be rejected being the evidence beyond pleadings. In this regard reliance can be placed upon the decision of Delhi High Court given in case Brij Mohan vs. Sunil Kumar Gupta 2007 IV AD (Delhi) 179. Accordingly the notional income of the deceased at Rs. 15,000/- per annum has to be presumed.
Delhi High Court in Smt. Devki Devi vs. Anil Gupta MAC APP. No. 139/2005 decided on 3-10-2007 held that notional income of Rs.6
15,000/- fixed in year 1994 must have become double in the year 2007 in absence of any revision and thus even granted future prospects on it keeping in the inflation and increase of prince index on the same pattern when minimum wages are slightly increased from time to time almost after every six months. Uttaranchal High Court also in Uttaranchal Transport Corporation vs. Sangat Kaur III (2007) ACC 245 permitted taking of future prospects even on notional income and held that notional income of Rs. 15,000/- as fixed in the year 1994 can be taken as Rs. 36,000/- per annum in the year 2005. Accordingly after relying upon the above judgments, I treat the notional income of the deceased atleast Rs. 33,000/- per annum.
Accident took place on 19-1-2009. Deceased was aged about 30 year at the time of death as per the contents of the petition and affidavit of PW-1. However the ration card Ex. PW1/1 produced by the petitioners show that the birth year of the deceased was 1983 which means that her age was about 26 years at the time of her death. No dispute has been raised in respect of this ration card and not a single suggestion has been given to PW-1 in cross examination in respect of entries made in the same. Post Mortem report Mark- A also gives the age of the deceased at 26 years and no cross examination of PW-1 has taken place in respect of this report also. In such circumstances, the age of the deceased has to be taken as 26 years as mentioned in the government documents which attaches presumption of the correctness and the oral version of the PW-1 has to be rejected as the petitioners being less educated persons may have some confusion about the actual year of the birth of the deceased. Accordingly keeping in view the age of the deceased at 26 years at the time of death, the appropriate multiplier has to be taken as 18 as per second schedule of section 163-A of the Act.
As 1/3rd income has to be deducted towards personal expenses of the deceased as per the second schedule so the net notional income of the deceased comes to Rs. 22,000/- (Rs. 33,000 x 1/3rd). Thus, the total loss of dependency comes to Rs. 3,96,000/- (Rs. 22,000 x 18).7
Respondent no. 3 Insurance Company has not brought on record any evidence to point out that respondent no. 1 was not having any valid driving license as well as failed to bring on record any evidence to point out that it is not liable to pay compensation amount as assessed by the court or any term or condition of the insurance policy was breached by the insured. On the other hand, during pendency of the petition, respondent no. 3 showed its inclination to settle the matter from which it can be said that it is only liable to pay the entire compensation amount keeping in view the existence of valid insurance policy.
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.
a) Funeral charges ===================Rs. 2,000/-
b) Loss of love and affection etc.===========Rs.40,000/-
c) Loss of Estate ====================Rs.2,500/-
d) Loss of consortium =================Rs.5,000/-
e) Loss of dependency=================Rs. 3,96,000/-
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Total Rs. 4,45,500/-
After conclusion of the trial and hearing of when case had already adjourned for passing of final orders on 30-3-2011, then respondent no. 3 along with its written submissions filed an application under section 170 Motor Vehicles Act on 29-3-2011 for allowing to take defenses as available to the respondents no. 1 and 2 on the ground that they had not appeared in the witness box to rebut the allegations of the negligence of the petitioners against the respondent no. 1 and had not contested the case properly. First of all this application is liable to be rejected being not filed at appropriate stage. Moving of this application for name sake at the end of the case when all proceedings have already been 8 concluded is not maintainable. Moreover this is a case under section 163-A of Motor Vehicles Act where question of any rashness and negligence of the driver does not arise. Record shows that respondents no. 1 and 2 duly cross examined the PW-1. Mere fact that they did not choose to lead their own evidence itself is not sufficient to presume that they had failed to contest the case especially when respondent no. 3 also did not opted to lead any of its evidence also. Hence mere on the basis of vague averments, application moved at a very belated stage is liable to be rejected straightway.
Respondent no. 3 insurance company was having knowledge since beginning that it was only liable to pay the entire compensation amount. It also offered to settle the matter but took a rigid stand that it will not pay any interest and will not give any future prospects under the settlement but would have no objection for making such payment if the award is passed. By taking such absurd and unreasonable stand, insurance company not only showed its intention to disobey the law laid down by our own High Court that future prospects have to be given even on notional income but also tried to avoid making payment of legal interest upon the compensation amount despite the fact that petition is pending for the last more than two years. This rigid approach is also visible in the written submissions filed where no whisper is shown to pay any future prospects and company still sticked to notional income of Rs. 15,000/- only.
Though respondent no. 3 could not have been compelled to enter into settlement but when it had shown inclination to enter into the settlement then it must have come with a reasonable stand and justifiable compensation. Giving such offer of settlement which is highly unreasonable and deprive the just compensation under some alleged absurd policy matter of the company is liable to be condemned. Insurance company could have settle the matter at the earliest by making payment of compensation by adding future prospects as allowed by our own High Court which could also save the prestigious time of the court as there had not remain any necessity to hear the arguments and 9 to write a detailed judgment and the time spent upon these things could have been utilized for disposal of other matters. In the present proceedings, insurance company has failed to discharge its obligations and acted in highly arbitrarily manner which has resulted in harassment to the petitioners and also wasted the court time, so keeping in view the adamant absurd attitude of the respondent no. 3 in this regard, court even passed a strong order against it on 16-3-2011 and taken strong exception to such act and conduct of the insurance company. Accordingly, I am of the view that respondent no. 3 should be penalized to some extent, so I deem it proper to grant interest at the higher rate on the compensation amount then normal rate of interest. Hence after relying upon the decision of Supreme Court given in Ghaziabad Development Authority vs. Balbir Singh II (2004) CPJ 12 respondent no. 3 is directed to pay interest at the rate of 15% p.a. on the award amount from the date of institution of the petition i.e. 4-2-2009 till realization.
Respondent no. 3 is also directed to pay compensatory costs of Rs. 2,000/- to petitioner for moving baseless and unnecessary application under section 170 of Motor Vehicles Act which is rejected above and this amount can be adjusted against litigation charges also.
Issue no. 3 (Relief):-
On the basis of findings given above, present petition is disposed off. Respondent no. 3 insurance company is directed to pay sum of Rs. 4,45,500/- along with interest at the rate of 15 % p.a. from 4-2-2009 till this amount is fully paid. An additional sum of Rs. 2,000/- be also paid as compensatory costs/litigation charges assessed above.
It is further ordered that out of the compensation amount, Rs. 1,00,000/- each be paid to the minor petitioners no. 2 to 4 and their share be deposited in FDRs in their names till the date they attains the majority. The balance amount alongwith all interest be paid to petitioner no.1 (husband of the deceased). Petitioners no. 2 to 4 however shall be entitled to get quarterly 10 interest on their FDRs but it shall not be encashed without permission of the court. No loan or advance shall be given on these FDRs except with prior permission of court. Interest on FDRs of minor petitioners no. 2 to 4 be paid to their father. Copy of this judgment be given to petitioners and counsel for respondent no. 3 and file be consigned to record room.
(Ashwani Sarpal)
Dt. 2-4-2011 Judge, MACT