Delhi District Court
Smt. Komal W/O Late Sh. Amit Dhingra (20) vs Sh. Darshan Kumar S/O Sh. Gr4Dayal ... on 2 June, 2007
1
IN THE COURT OF SH. A.S. JAYACHANDRA
PRESIDING OFFICER, MACT, KKD, DELHI
SUIT NO. 312/05
Date of filing: 28.07.05
Arguments concluded on: 10.05.07
Judgment delivered on : 02.06.07
IN THE MATTER OF:-
1. Smt. Komal W/o Late Sh. Amit Dhingra (20)
2. Km. Bhumika D/o Amit Dhingra ( 1 ½ )
3. Sh. Sukh Dev Dhingra (50)
4. Km. Sushmita D/o Late Amit Dhingra (1)
Petitioners no. 2 & 4 through their mother.
All R/o H. No. 365-C, DDA Flats, Gazipur, Delhi.
.........Petitioners
VERSUS
1. Sh. Darshan Kumar S/o Sh. Gr4dayal Sharma,
R/o 114, Baldev Park, Delhi.
2. Sh. Hardeep Singh S/o Sh. Avtar Singh,
R/o B-168, Yojna Vihar, Delhi.
3. National Insurance Company Ltd.
Noida, Sector-18, Ghaziabad, UP.
4. Smt. Pinki W/o Sh. Sukhdev Dhingra (45)
R/o Block NO. 10, H. No. 28, Khichripur
and also H. No. 365-C, DDA Flats, Gazipur, Delhi.
.........Respondents
J U D G M E N T / 02.06.07
1. Petitioners, the legal heirs of deceased Amit Dhingra (23) claimed compensation of Rs. 20 lakhs. They allege that on 04.07.05 deceased was going on his motor cycle bearing 1/7 2 no. DL-7SAB-8495 along with pillion rider. When he reached at Dhaula Pull, suddenly a bus bearing no. DL-1PA-2854 came in a rash and negligent manner and hit him by which he received fatal injuries.
2. The respondent no. 1 is the driver, respondent no. 2 is the owner, respondent no. 3 is the insurer of the offending vehicle. Respondent no. 4 is the proforma respondent. Upon notice they have filed their written statements. Respondents no. 1 & 2 filed the common written statement and denied the accident. Respondent no. 3 Insurance Company admits that the vehicle is insured in favour of respondent no. 2 covering the date of accident.
3. Based on the pleadings, following issues are framed on 19.04.06:-
1) Whether the petitioners prove that they are the legal representatives of the deceased Amit Dhingra?
2. Whether the petitioners prove that the deceased Amit Dhingra, died in the road accident dated 04.07.05, at Dhaula Pull, GT road, Begraj Pur, within the jurisdiction of PS Mansurpur, Sadar Muzzafar Nagar, UP, involving vehicle no. DL-1PA-2854 due to the rash and negligent act of respondent no. 1?
3) Relief.
4. The petitioners have examined two witnesses and closed their side. There is no evidence on behalf of respondents. The matter was heard.
5. During the course of arguments I have noticed that one more issue is required to be 2/7 3 framed. With the consent of the Ld. Counsel on either side, the same is framed as under to treat the same as issue no. 3 and issue no. 3 framed already will be treated as issue no. 4:- ISSUE NO. 3
3) Whether the petitioners are entitled for compensation, If so to what amount and from whom?
Heard the Ld. Counsel on all the issues and I have carefully perused the entire material evidence available on record.
6. With the available oral and documentary evidence, I proceed to answer the issues as under:-
ISSUE NO. 1 & 2
Issues no. 1 & 2 are taken up together. PW 1 the father of the deceased deposed the relationship of the petitioners and respondent no. 4 with the deceased. Respondent no. 4 is the wife of PW 1 and the mother of the deceased. He further deposed that his son died in the road accident dated 04.07.05. He produced the FIR, PMR and site plan at EX. P-1. The relationship of the petitioners with the deceased is not in dispute. Hence I hold that petitioners are the LRs of the deceased.
PW 2 Mir Singh deposed on oath that on 04.07.05 he was at his Dhaba. Around 9.30-10.00 p.m., a bus bearing no. 2854, came from Mujjafar Nagar in a rash and negligent manner and hit the motorcycle. He further deposed that there were three occupants on the motorcycle, a gentleman, a lady and a child. He further deposed that one male person died 3/7 4 at the spot and he helped them to shift to nearby chowki. He deposed that the accident occurred due to the negligence on the part of the bus driver. There is no cross examination on behalf of respondents no. 1 & 2. In the cross examination by respondent no. 3 he stated that the motorcycle was being driven at a high speed and that the occupants of the motorcycle were not wearing helmets. He further admits that the both the vehicles were moving in opposite direction and he has not made any statement to the police.
In the above context it is to be seen that respondent no. 1 & 2 who denied the accident have not led any positive evidence to show that respondent no. 1 was not driving the bus in a rash and negligent manner.
However in Bijoy Kumar Dugar Vs. Bidyadhar Dutta & Ors, II (2006) ACC 36 (SC), it is held that in the matters of head on collision the drivers of both the vehicles should be held responsible to have contributed to the accident. From the cross examination of PW 2 I find that three persons were found on the motorcycle and that they were not wearing helmets. This is a head on collision. Considering that the victim vehicle being a motorcycle and the offending vehicle being a bus, the negligence attributable to the bus is at 80%. Hence, the blameworthiness of the deceased is assessed at 20%.
The criminal court records marked collectively at Ex. P-1 shows that the driver of the vehicle no. DL-1PA-2854 is charge sheeted for the offences U/s 279,338 & 304A of IPC along with 177 & 184 of M. V. Act in FIR No. 118/05, PS Mansurpur, Sadar, Mujjafar Nagar. The PMR also shows that one Amit Kumar died. After careful perusal material 4/7 5 available on record, I am satisfied to hold issue no. 1 & 2 in favour of the petitioners and against the respondents subject to blameworthiness of the vehicle of the deceased at 20%. ISSUE NO. 3
The age of the deceased as pleaded in the petition is 23 years. It is also stated that he was earning Rs. 20-22 thousands per month. PW 1 stated that he was doing tent house business but no documentary evidence is forthcoming to show the employment and income of the deceased. The income of the deceased under Minimum Wages Act for a skilled worker which is Rs. 3,468/- per month. However considering that he was into the business his income can be reasonably assessed at Rs. 5,000/- per month, which I prefer to Minimum Wages . Considering the age of the widow, the multiplier applicable is 17. Hence the loss of the income of the deceased is 5000 X 12 X 17 = 10,20,000/-. After deducting one third towards the personal expenses of the deceased, the loss of dependency comes to Rs. 6,80,000 /-.
Deducting the blameworthiness of 20% of the vehicle in which the deceased was traveling, the compensation payable by the respondents comes to Rs. 5,44,000/- There is no evidence to arrive at future prospects. Hence, I followed rulings in 2001 ACJ 705, Delhi Bulbul Chakrabartty and others versus Ram Kumar and AIR 2006 SC 1255 Bijoy Kumar Duggar v. Bidagar Dutta as regards the future prospects.
Apart from the above, the petitioners are also entitled for funeral expenses, transportation of dead body and loss of estate @ Rs. 10,000/- each. Petitioner no. 1 is also 5/7 6 entitled towards loss of consortium for a sum of Rs. 10,000/-. Hence, the total compensation comes to Rs. 5,84,000/- (Rs. Five Lakh eighty four thousands only ). LIABILITY There is no evidence on the part of the respondents to deny the liability. Therefore, the respondents no. 1 & 2 being the driver and owner of the offending vehicle are jointly and severally liable to pay the compensation to the petitioners. However respondent no. 3 being the insurer and having admitted the policy, shall make good the same. RELIEF While granting the relief to the petitioner, I am also to award the interest @ 7.5 % p.a., from the date of petition till the date of award following the ruling of Hon'ble Supreme Court in TNSTC vs. Raja Priya, 2005 ACJ, Page 1441. I also grant future interest @ 9 % p.a., after one month of the award till realisation.
In view of the above, I pass the following award :
AWARD The petition is partly allowed. Respondents no. 1 to 3 are jointly and severally liable to pay the compensation. However respondent no. 3 being the Insurance Company shall pay the compensation of Rs. 5,84,000/-(Rs. Five lakhs Eighty four thousands only )within one month along with the interest @ 7.5 % p.a., to the petitioners towards the accidental death of one Amit Dhingra. The above award be complied less the interim award paid if any.
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Compensation amount be deposited within one month from today excluding the ensuing vacation. In default future interest @ 9 % p.a., is awarded to the petitioners, after one month from the date of award till realisation.
After deposit a share of 30% percent be apportioned to petitioner no. 1 and fifty percent of such share be kept in FDR for a period of 5 years. Rest of the amount be apportioned equally among petitioners no. 2 to 4 and respondent no. 4. Shares of minor petitioners no. 2 & 4 be kept in FDR till they attain majority with a liberty to draw the annual interests.
Award part of this judgment be given free of cost to the parties concerned. Let this file be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THE 02nd DAY OF June, 2007 (A.S. JAYACHANDRA) PO : MACT : KKD COURTS : DELHI 7/7