Delhi District Court
Sh. Mahesh Rai vs Sh. Rajendra Kumar on 25 April, 2012
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IN THE COURT OF MS. PREETI AGRAWAL GUPTA:
JUDGE: MACT(OUTER): ROHINI: DELHI
Case No. 212/09
1. Sh. Mahesh Rai
s/o Sh. Patthal Rai
2. Ms. Rita Devi
w/o Sh. Mahesh Rai
Both residents of M30
Krishna Vihar, Delhi86. ....Petitioners
Versus
1. Sh. Rajendra Kumar
s/o Sh. Dharampal Singh
2. Mohit Kumar
s/o Sh. Rajender Kumar
Both r/o a442, Block A
Inder Enclave II
Kirari Suleman Nagar, Delhi ....Respondents
DATE OF INSTITUTION : 22/01/2009 JUDGMENT RESERVED ON : 23/04/2012 DATE OF JUDGMENT : 25/04/2012 AWARD:
1. The present petition has been filed by petitioners as parents of Master Arun Kumar aged seven years who is stated to have unfortunately died in the road accident. Hence, the present claim for compensation U/s 166 & 140 of Motor Vehicle Act 1988. The present claim has been filed to the tune of Rs. 25 Lacs against respondent no.1 and respondent no.2, being the driver and owner respectively in respect of offending vehicle.
Case No. 212/09 page no. 1/17
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2. It is the case of the petitioners that on the unfortunate day of 28.09.2007 at about 7:15 a.m while the deceased was crossing the main road at Nithari More, near Navin Public School, Nithari. Delhi he was going to meet his father in a godown opposite to his residence, the offending vehicle bearing no. DL9CB6480 came from the side of Nithari Village at a very high speed in a rash and negligent manner and hit the deceased. The driver of the vehicle/respondent no. 2 was so rash and negligent that he did not stop the vehicle even after hitting the deceased and dragged him to a distance due to which the deceased was crushed to death. It is alleged that accident took place due to rash and negligent driving of respondent no. 2 in gross violation of traffic rules. The victim/minor child was immediately taken to Sanjay Gandhi Hospital, Delhi where he was declared brought dead and post mortem was conducted. FIR bearing no.141/07 U/s 279/304A IPC was registered at PS Aman Vihar dated 28.11.07 against respondent no.2. Post mortem report dated 28.11.07 in respect of the deceased child is also filed. It is the case of the petitioners that the deceased was having very sound health and had a bright future ahead if not killed by the accident in question and that due to unfortunate and untimely death of the minor child, the petitioners have suffered irreparable losses, both mental as well as pecuniary. It is contended that petitioners have suffered a great mental shock, trauma, pain and agony and that both the respondents are jointly and severally liable to pay the compensation to the petitioners. Case No. 212/09 page no. 2/17
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3. The respondents no.1 and 2 filed written statement taking preliminary objections about maintainability of the petition on the ground that they have been falsely implicated denying their involvement in the accident. On merits, averments of the petition are denied. It is the case of the respondents that accident was caused due to fault and negligence of the minor child. It is denied that there was any rashness or negligence on the part of respondent no.2. The respondents have further denied any liability to pay the exorbitant claims of the petitioners.
4. From the pleadings of the parties, following issues were framed vide order dated 08/01/2010:
1. Whether the deceased Master Arun s/o Sh. Mahesh Rai expired due to the fatal injuries received in the roadside accident occurred on 28.09.2007 at about 7:15 a.m at Main Road Nithari More, near Navin Public School, Nithari, Delhi due to due to rash and negligent driving of R1/driver of the offending vehicle no. DL9CB6480 ? OPP
2. Whether petitioners are entitled to compensation as prayed for , if so, to what extent and from which of the respondents?OPP
3. Relief
5. The petitioner no.2 (mother of deceased) examined herself as PW1 and tendered her affidavit in evidence vide Ex PW 1/A.PW1 has further filed copy of certificate issued by the Mukhia of petitioner's village as Ex. PW 1/1 and rent agreement as Ex. PW 1 /2 and copies Case No. 212/09 page no. 3/17 :4: of criminal case record as collectively mark A. Deposition of PW1 is in terms of the averments in the plaint narrating the alleged facts of the accident which caused the untimely death of the minor child namely Master Arun Kumar . PW1 testified that she was as an eye witness and was accompanying the child at the time of accident and has further attributed rashness and negligence upon Respondent no.2 in driving the offending vehicle thereby causing the accident and death of the minor child. PW1 has supported in her claim in the petition and has also placed on record documents pertaining to the criminal record. PW1 has been cross examined by the ld. Counsel for respondent nos. 1 and 2 to check her veracity . PW1 has deposed that her child was ahead of her and that she was not holding his hand at the time of accident. It has been further deposed that the spot of accident was in front of her house. It is specifically denied that she was cooking food at the time of accident. Petitioner no. 2 as PW1 has duly supported her case.
6. The petitioner no.1 (father of deceased) examined himself as PW2 and tendered his affidavit in evidence vide Ex PW 2/A wherein the facts as per plaint were narrated in length attributing rashness and negligence upon Respondent no.2 in driving the offending vehicle thereby causing the accident and death of his son. PW2 has been cross examined by the ld. Counsel for respondent nos. 1 and 2 wherein it is admitted that he was not the eye witness of this case. It is averred that he had seen the offending vehicle in the police station. Case No. 212/09 page no. 4/17
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7. Mr. Jainarayan Rai (uncle of the deceased) has been examined PW3 as and tendered his affidavit in evidence vide Ex PW 3/A wherein it is deposed that he was present near a shop when the accident took place. He has deposed that while his nephew Arun Kumar was crossing the main road at Nithari More, near Navin Public School, Nithari on 28.11.07 at about 7:15 a.m , the offending vehicle, Maruti Van, white colour bearing no. DL9CB6480 came from the opposite side of Nithari village in a rash and negligent manner and hit the minor child and dragged him to a distance due to which the deceased was crushed to death. It is further deposed that he ran ran towards h is nephew and sent him to Sanjay Gandhi Hospital with his friends and relatives where the doctor declared his nephew as brought dead. He himself went to the police station and identified the respondent no. 2/driver of the vehicle.
8. Despite opportunities, none has appeared to lead RE. Hence, opportunity to lead RE stands closed.
9. On completion of necessary enquiries, the arguments addressed by ld counsels for parties have been heard and appreciated.
10. My findings on the above mentioned issues are as follows:
11. ISSUE NO. 1:
Whether the deceased Master Arun s/o Sh. Mahesh Rai expired due to the fatal injuries received in the roadside accident occurred on 28.09.2007 at about 7:15 a.m at Main Road Nithari More, near Navin Public School, Nithari, Delhi due to due to rash and negligent driving of R1/driver of the offending Case No. 212/09 page no. 5/17 :6: vehicle no. DL9CB6480 ? OPP
12.As regards, the fact of accident is concerned, PW1 Smt. Rita Devi has deposed as petitioner witness/PW1. She is the mother of the deceased child and also the eye witness of the accident. The deposition of PW1 duly supports the averments in the petition in respect of the occurrence of the accident on the unfortunate day of 28.11.2007 at the main Road, Nithari More, Nithari, Delhi while PW1 was crossing the road along with her deceased son Arun, aged 7 years. PW1 has testified that the offending vehicle bearing no. DL9CB6480 came at a very fast speed in a rash and negligent manner and hit the child with the great force. It is deposed that the driver of the offending vehicle was so rash and negligent that he did not stop the vehicle even after hitting the deceased and dragged him to a distance due to which the deceased was crushed to death. The witness has been crossexamined at length regarding the accident. No contradiction or breach could be brought forth in the testimony of PW1 as to the occurrence of the accident. The witness has also been cross examined regarding the involvement of the offending vehicle. The testimony of PW1 is duly corroborated by testimony of another eyewitness PW3 Sh. Jai Narain Rai in all material particulars. The testimony of PW3 is unbreached and unchallanged. Both the eye witnesses PW 1 and PW3 have categorically deposed against the respondent no. 2/driver of the Case No. 212/09 page no. 6/17 :7: offending vehicle and have justified that the accident in question was caused due to rash and negligent driving of respondent no. 2 who continued to drag the minor victim after hitting him thereby crushing the minor victim to death. It has been specifically testified by PW1 who is the mother of the deceased victim and was accompanying the minor child at the time of accident, that she even caught respondent no. 2/driver but he resisted and ran away from the spot with threats. The testimony of PW1 in this regard stands supported by deposition of PW3 who has duly identified by respondent no. 2/driver at the Police Station. The record pertaining to criminal investigation has been perused and reveals that an FIR u/s 279/304A IPC has been registered and the offending vehicle bearing DL9CB6480 has been seized. The FIR and all the relevant documents before the Court evidently show that the accident involving the deceased minor victim was caused by the offending vehicle due to rash and negligently thereby causing fatal injuries upon the deceased/minor child.
13. Postmortem report number 1073/07 dated 28.11.07 in respect of deceased minor victim conclusively opines the cause of death as the injuries sustained in the road accident.
14. In view of the aforesaid facts and reasons, it stands duly established that the deceased Master Arun s/o Sh. Mahesh Rai expired due to the fatal injuries received in the roadside accident Case No. 212/09 page no. 7/17 :8: occurred on 28.09.2007 at about 7:15 a.m at Main Road Nithari More, near Navin Public School, Nithari, Delhi due to due to rash and negligent driving of R1/driver of the offending vehicle no. DL9CB6480.
15. ISSUE NO. 2:
Whether petitioners are entitled to compensation, if so, to what extent and from which of the respondents?OPP The present claim has been filed on behalf of petitioners as parents of the minor child for claim of compensation of Rs. 25 Lacs. Before examining the quantum of compensation payable to the petitioners, it is necessary and relevant to examine the legal position in cases of accidental death of minors.
16. A binding law has been laid down by Law in our country in R. K. Malik & Anr. Vs. Kiran Pal & Ors. 2009 ACJ 1924 wherein the Hon'ble Supreme Court examined the various aspects for arriving at the assessment of just and reasonable compensation. By the aforesaid authority, the law relating to compensation for death of the child is well settled wherein it has been held as under:
"The real problem that arises in the cases of death of children is that they are not earning at the time of the accident. In most of the cases they were still studying and not working. However, under no stretch of imagination it can be said that the parents, who are appellants herein, have not Case No. 212/09 page no. 8/17 :9: suffered any pecuniary loss. In fact, loss of dependency by its very nature is awarded for prospective or future loss. In this context, Lord Atkinson aptly observed in Taff Vale Rly. Co. V. Jenkins (191113) All England Reporter 160 as follows:
"In case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child's lifetime. But this will not necessarily bar the parents' claim and prospective loss will be found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived". That being the position, the crucial problem arises with regard to the quantification of such compensation. The injury inflicted by deprivation of the life of a child is extremely difficult to quantify. In view of the uncertainties and contingencies of human life, what would be an appropriate figure, an adequate solatium is difficult to specify. The Courts have therefore used the expression "standard compensation"and "conventional amount/sum" to get over the difficulty that arises in quantifying a figure as the Case No. 212/09 page no. 9/17 :10: same ensures consistency and uniformity in awarding compensation.
17. The Apex Court in Kaushlya Devi V. Karan Arora & Ors, AIR 2007 Supreme Court 1912 has observed as follows: "There are some aspects of human life which are capable of monetary measurement, but the totality of human life is like the beauty of sunrise or the splendor of the stars; beyond the reach of monetary tape measure. The determination of damages for loss of human life is an extremely difficult task and it becomes all the more baffling when the deceased is a child and/ or a non earning person. The future of a child is uncertain. Where the deceased was a child, he was earning nothing but had a prospect to earn. The question of assessment of compensation, therefore, becomes stiffer. The figure of compensation in such cases involves a good deal of guesswork. In cases, where parents are claimants, relevant factor would be age of parents.
In case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child's life time. But this will not necessarily bar the parent's claim and Case No. 212/09 page no. 10/17 :11: prospective loss will find a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived. This principle was laid down by the House of Lords in the famous case of Taff Vale Rly. v. Jenkins (1913) AC 1 , and Lord Atkinson said thus:
".......... all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact - there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first that the deceased earned money in the past, and, second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can I think, be drawn from circumstances other than and different from them.".............................. Case No. 212/09 page no. 11/17
:12: In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation."
18. It shall also be pertinent that in various Authorities in this regard, it has been held that the Court are duly empowered to duly concern the child's performance in the school, reputation in the school and all such aspects into consideration to examine if the future prospects of the child would be presumed to be good and bright. The law in the aforesaid authority has been uniformally followed by Hon'ble High Court in following judgments:
1. Sh. R. K.Malik & Anr. Vs. Kiran Pal & Ors. 2009 ACJ 1924.
2. Mohd. Ayyub & Anr. Vs. Satish Kumar Gupta & Ors. 2010 ACJ Case No. 212/09 page no. 12/17 :13:
420.
3. Jitender Kumar & Anr. Vs. Oriental Insurance Company Limited 2010 ACJ 242.
4. National Insurance Company Ltd. Vs. Farzana & Ors. 2009 ACJ 2763
19. It has been further held in Mohd. Ayyub's case (Supra) that the injury inflicted by deprivation of the life of a child is extremely difficult to quantify. In view of the uncertainties and contingencies of human life, what would be an appropriate figure, an adequate solatium is difficult to specify. The Hon'ble High Court of Delhi in the aforesaid authorities have duly placed reliance upon the Hon'ble Apex Court in R. K. Malik's case (Supra) as well as have carefully appreciated the celebrated cases of Lata Wadhwa V. State of Bihar, 2001 ACJ 1735 (SC) as well as in M. S. Grewal V. Deep Chand Sood, 2001 ACJ 1719 (SC).
20. It is a well established principle of law that the object of an award of damages is to give the plaintiff compensation for damage, loss of injury he has suffered. The elements of damage recognized by law are divisible into two main groups; pecuniary and nonpecuniary. While the pecuniary loss is capable of being arithmetically worked out,the nonpecuniary loss is not so calculable. Nonpecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute money; it is the best that a court can do. (Reliance placed on Common Cause, A Registered Society V. Union of India (1999) 6 SCC 667.
Case No. 212/09 page no. 13/17
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22. However, as here in discussed above, in cases involving death of minor children, where the child was of tender age, measure of damages cann't be calculated in pecuniary terms in view of the unknown uncertainties where there are unknown future prospects and as such there may be no actual pecuniary loss that may have been caused to the parents of the child. The question of assessment of compensation, therefore, becomes stiffer when deceased was a child. The parents may have a reasonable expectation of pecuniary benefit if the child had lived but it is difficult to assess the basis of the fact from which such uncertainties can be reasonably drawn neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by parents is capable of mathematical computation. Therefore, the court in grant of just and reasonable compensation in case of death of minor is to reasonably consider both aspects of compensation which includes "pecuniary damages" as well as "non pecuniary damages" as followed by the Hon'ble High Court of Delhi in National Insurance Company Ltd. Vs. Farzana & Ors. 2009 ACJ 2763 after duly considering the law in R. D. Hattangadi Vs. Pest Control (India) (P) Ltd. 1995 1 SCC 551. It has been held that pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In the facts before the Court case involved death of seven years old child and the notional income Case No. 212/09 page no. 14/17 :15: of the deceased was taken to be Rs. 15,000/ per annum and applying the multiplier of 15, claimants are entitled to loss of dependency of Rs. 2,25,000/. The claimants were also granted compensation of Rs. 50,000/ towards future prospects in terms of the judgment of the Hon'ble Supreme Court in R. K. Malik Vs. Kiran Pal 2009 ACJ 1924 (SC). To this, the sum of Rs. 75,000/ was added towards non pecuniary damages in terms of the above said judgment. The Hon'ble Apex Court has thereby awarded total compensation of Rs. 3,75,000/ to the claimants.
23. In the facts of the present case, post mortem report bearing no. 1073/09 dated 28.11.07 reveals the the age of child as 7 years at the time of death. The parentage is also duly proved by certificate issued by the Mukhia of petitioner's village as Ex. PW 1/1 in the testimony of PW1. However, there is no circumstance due to tender age of the child being 7 years which can show any specific future prospects. Accordingly, keeping in view the ratio of decision of the Hon'ble Apex Court and Hon'ble High Court of Delhi and in the facts and circumstances of the present case, the petitioners are entitled to pecuniary damages to the tune of Rs. 3 Lacs which would include Rs. 2,25,000/ for loss of dependency and Rs. 75,000/ for future prospects. The petitioners shall further be entitled to non pecuniary damages of Rs. 75,000/. Therefore, in the present case, the lump sum compensation of Rs. 3,75,000/ is just and reasonable.
Hence, respondent No.1 and the respondent No.2 being Case No. 212/09 page no. 15/17 :16: the owner and the driver are jointly and severally liable to pay the compensation as per the award to the petitioner.
24. ISSUE NO.3 In view of the aforesaid discussions, the award in the sum of Rs. 3,75,000/ is passed in favour of the petitioners and against the respondents. The petitioners are entitled to a sum of Rs. 3,25,000/ (after deducing Rs. 50,000/ on account of interim award) along with interest @ 7.5% p.a from the date of filing of claim petition till its realisation. The amount of compensation be equally apportioned between the petitioners. Respondent nos. 1 and 2 being the owner and driver are jointly and severally liable to pay the compensation. Petition is disposed off in aforesaid terms. File be consigned to Record Room.
ANNOUNCED IN THE (PREETI AGRAWAL GUPTA) OPEN COURT JUDGE MACT: ROHINI (OUTER) ON 25.04.2012 DELHI Case No. 212/09 page no. 16/17 :17: Case No. 212/09 page no. 17/17