Delhi District Court
Sh. Dharam Singh vs Kiranpal on 19 March, 2007
1
IN THE COURT OF SHRI GURDEEP SINGH : JUDGE
MOTOR ACCIDENTS CLAIMS TRIBUNAL : DELHI
Petition No. : 264/06
Date of filing of the petition : 10.10.05
Date of assignment to this court : 28.8.2006
Date of Award : 19.3.2007
In re:
1. Sh. Dharam Singh
s/o. Sh Prabhu Dayal
2. Smt. Murti Devi
w/o. Sh Dharam Singh
3. Master Tanuj
4. Baby Parul
(petitioner no 3 & 4 are minor
children are represented through
their grandparents petitioner no 1 &2
being their natural guardian)
All r/o. Village & PO Kair
New Delhi ..........Petitioners
Versus
1. Kiranpal
s/o. Sh Yad Ram
r/o. Palwal
Distt Faridabad
Haryana
2
2. Anil Kumar
s/o. Sh Navneet Rai
r/o. 137 Defence Estate
Phase 2, Agra, UP
3. The Oriental Insurance Co Ltd
through its Manager
13 Y G Road, Agra
UP
4. Smt Kusum
d/o. Sh Satvir Singh
w/o. Sh Vikrant Singh
r/o. Vill Moii Hooda
Distt Sonepat
Haryana ........... Respondents
APPLICATION U/S. 166 & 140 OF MOTOR VEHICLES ACT 1988 FOR GRANT OF COMPENSATION APPEARANCE:
Sh. Amit Anand counsel for petitioner Sh. Rajesh Chabra counsel for respondent no 1 & 2 Sh. V K Gupta counsel for respondent no 3 JUDGMENT/AWARD 3
1. This is a petition filed U/s. 166/140 of the Motor Vehicles Act (hereinafter referred to as 'Act of 1988') for grant of compensation on account of death of one Vikrant Singh. The petition was filed by the parents and minor children of the deceased against the driver, owner and insurance company of the offending vehicle. The wife of the deceased was shown as respondent no 4.
2. The facts giving rise to the present petition are that it is averred in the petition that on 3.8.05 the deceased was on duty at Rajouri Garden flyover from Mayapuri side to divert the traffic since the Metro construction was going on.
At about 4.20 AM when the truck bearing registration no HR 55B-3033 driven by respondent no 1 came at fast speed in rash and negligent manner from side of Mayapuri, the deceased alongwith other guards give indication to the truck to go from other side of the road but the truck rammed into the barricade and went ahead and ran over the deceased. The body of the deceased was dragged for a distance of 4 about 5 meter. The PCR van standing nearby was alerted and they after chase of about 500 meters intercepted the truck and arrested the driver. The injured was taken to the hospital where he was declared dead.
3. Respondent no 4 however could not be served and subsequently was served by way of publication. It is pertinent to mention that respondent no 4 was the second wife of the deceased who was taken away by her parents after death of deceased. She preferred no claim and was proceeded ex-parte vide order dated 16.9.06
4. Initially, respondent no 1 and 2 were proceeded ex-
parte vide order dated 28.8.06, but they had participated in the proceedings.
5. Joint written statement was filed by them wherein they admitted the accident but denied the negligence. It is also admitted that the vehicle was insured.
6. Subsequently, respondent no 1 and 2 moved application for setting aside the ex-parte order and vide 5 order dated 1.3.07 the application U/o 9 R 7 CPC for setting aside the ex-parte order moved on behalf of respondent no 1 and 2 was allowed with condition that they will be permitted to participate in the proceedings by leading their evidence and shall not recall the witnesses already examined on behalf of petitioner. Prior to that application U/s. 170 of M V Act moved on behalf of insurance company was allowed.
7. Vide order dated 20.9.06 following issues were framed:
(i) Whether Sh Vikrant Singh died on 4.8.05 on account of rash and negligent driving by R2 of truck bearing no HR 55B-3033?
(ii) Whether the petitioners and respondent no 4 are entitled to any compensation, if so to what amount and from whom?
(iii) Relief.
8. In in support of their case petitioners examined PW1 Sh Dharam Singh father of deceased; PW2 Sh 6 Mukesh Kumar colleague of deceased; PW3 Sh Rotash Singh; PW4 Sh Satbir Singh colleague of deceased; PW5 Sh Dhani Ram clerk from DDU Hospital who proved the post mortem report of deceased Ex. PW5/1; PW6 Ct. Dharan Singh from PS Rajouri Garden proved FIR Ex. PW6/1 and the DD report Ex. PW6/2.
9. Respondent no 1 and 2 examined themselves as R1W1 and R2W1 respectively and filed their evidence by way of affidavit.
10. I have heard counsel for the parties and have also gone through the record.
11. My issuewise findings are as under:
ISSUE NO 1
12. PW2 testified that he was serving in Security Agency in the capacity of Traffic Marshal. On 4.8.05 he alongwith deceased were on duty at Rajouri Garden flyover from where the flyover starts for Mayapuri and their duty was to divert the traffic because of the Metro construction at 7 Raja Garden flyover. At about 4.20 AM a truck bearing registration no HR-55B-3033 came driven by respondent no 1 at a very high speed in rash and negligent manner and they gave signal to the truck to go on the other side of the road but the truck while coming at high speed hit the barricade and thereafter, the deceased. The truck did not stop and it was intercepted by the PCR after a chase. The deceased was removed to DDU hospital where he was declared brought dead.
13. In his cross examination on behalf of respondent no 1 and 2 he stated that the petitioner is his uncle. He stated that he was working with the deceased in the same office at time of accident. He stated that they were not issued any certificate by their employer regarding the terms and conditions of job; the duration of their job and their job being temporary or permanent. He stated that his statement was recorded by the police on the same day at the spot.
14. PW5 has proved the post mortem report of 8 deceased. PW6 proved the FIR which was registered for offence punishable U/s. 279/304-A IPC.
15. On the other hand R1W1 stated that the truck was at slow speed. He admitted driving the truck. He stated that the deceased suddenly came from left side and struck against the truck from left rear wheel who was under the influence of sleep and was crossing the road without care and caution. He stated that he applied sudden brakes but the rear portion of the truck struck the deceased who sustained injuries and lateron died in the hospital.
16. In his cross examination he admitted that criminal case is pending against him and he is on bail. He denied the suggestion that he was driving the truck in rash and negligent manner.
17. The accident has been admitted but the negligence has been denied. From the testimony of eye witness it is clear that the truck was driven at fast speed and it did not stop despite signal for diversion was given by deceased. 9 The version given by respondent is not at all believeable. Further, he has not filed any complaint for his false implication by the police. Accordingly, I am of the opinion that the deceased died on account of rash and negligent driving on part of respondent no 1. Issue no 1 is decided accordingly.
ISSUE NO 2
18. As per the petition the deceased was aged about 32 years. He was working as security guard and was also supplier of milk and his monthly income is shown as Rs. 19,300/- per month.
19. PW1 testified that the deceased was his son. The deceased left behind besides him, his mother and two minor children who were from his first wife who had pre-deceased him. His second wife left the home after death of deceased leaving minor children with him. He further stated that as per his information she has remarried. He stated that the deceased was working with Flash Security Agency doing 10 night duty getting salary of Rs. 4300/- and in the day time he used to look after the diary with the help of servants.
20. PW4 stated that he is working as Supervisor with M/s. Flash Security Agency. He stated that deceased joined their company on 18.5.05 and worked till the accident. His total emoluments was Rs. 4300/- per month and proved the certificate to this effect. He stated that the duty timings were from 12 midnight to 8.00 AM on the date of accident.
21. PW3 testified that he is Secretary of New Gopal Nagar Ext. Welfare Association. He stated that he knew the deceased as he was having his diary near to his house. He stated that deceased was having 4-5 buffaloes and used to supply milk in the locality with help of his servant. His monthly income from it was about Rs. 11,000/- per month.
22. In his cross examination he stated that deceased used to work in the diary in morning from 4.00 AM to 6.00 AM and in evening from 2.00 PM to 5.00 PM. He stated that beside him there was one servant who used to help him 11 in diary work. He stated that he does not have any document to show that the deceased was earning about Rs. 11,000/- per month from diary work.
23. The testimony of PW3 is not at all beliveable since PW4 has stated that deceased used to work till 8.00 AM since he was in the night duty. Therefore, it cannot be believed that he was running milk diary simultaneously by working there in day and attending night duty as guard. It is common knowledge that the diary work starts from early morning and it was not possible for him to be present at both place. The diary work must have been looked after by his father with the assistance of servant, therefore, it cannot be said that there was loss of income on that account.
24. PW4 has proved Ex. PW4/2 the payment disbursement sheet for the month of May to July '05. The deceased had hardly worked for three month with them therefore, it cannot be said that his job was permanent in nature. However, in the circumstances I take the income of 12 the deceased as Rs. 4100/- per month. Further, he would have been spending 1/3rd of his income on his own pleasure and maintenance thereby leaving about Rs. 2733/- (4100 - 1/3rd ) with his family which annually comes to Rs. 32,796/-.
25. The appropriate method of calculating the compensation is multiplier method. In the series of judgment the Hon'ble Supreme Court had held that in India the multiplier method for calculation of compensation as enunciated by their Lordship Wright in Davies V. Powell Duffregn Associated Collieries Limited 1942 AC 601 has been held to be the appropriate method to calculate the compensation. By this method the compensation is arrived at by estimating the amount of wage which the deceased was earning, estimating as how much was required for his own living and saving. The balance will give a datum or basic figure which will generally be turned into lump sum by taking a certain number of years purchase. That sum, is to be 13 taxed down by having due regard to the un-certainties such as the victim would be married and would ceased to be dependent and like other matters of speculation and doubt. The Hon'ble Supreme Court in the celebrated judgment of General Manager, Kerala State Road Transport Corporation V. Mrs. Susamma Thomas & Ors (SC) 1994 ACJ 1 has held that the multiplier upto 16 can be given, however, the same was increased to the multiplier of 18 in UP State Road Transport Corporation & Ors V. Trilok Chandra & Ors 1996 (4) SCC 362. In both these judgments the Hon'ble Supreme Court has held that table annexed with the Motor Vehicle Act can be used as guidance to arrive at the appropriate multiplier. Further, Hon'ble Supreme Court has recently laid down in Su Pedi & Ors V. National Insurance Co Limited 1 (2005) ACC 63 SC delivered by three Judges bench that for the determination of compensation the multiplier should be 14 taken from the second schedule of the Act 1988 and as per the age of the deceased the appropriate multiplier would be
17. Therefore, the loss of income to the dependent of the deceased comes to Rs. 5,57,532/- (4100 - 1/3rd x 12 x 17).
26. Accordingly, I calculate the compensation payable to the petitioner as under:
(i) Loss of dependency Rs. 5,57,532/-
(4100 -1/3rd x 12 x 17)
(ii) Funeral expense Rs. 10,000/-
(iii) Loss of love & affection Rs. 10,000/-
TOTAL Rs. 5,77,532/-
(rounded off) Rs. 5,78,000/-
RELIEF
27. Accordingly, I award a compensation of Rs. 5,78,000/- (Rupees Five Lakh Seventy Eight Thousand Only) with interest at the rate of 7% per annum from the date of filing of the petition till its realisation.
APPORTIONMENT 15
28. Out of the total amount of the compensation awarded petitioner no 1 & 2 i.e. Sh Dharam Singh and Smt Murti Devi shall get a sum of Rs. 25,000/- each and out of it Rs. 20,000/- each alongwith proportionate interest be kept in fixed deposit for a period of five years in a Nationalised Bank in name of petitioners with quarterly interest payable to the petitioners, however, with no facility of loan or advance on the same.
29. Although it is stated by petitioner no 1 that respondent no 4 has remarried to his knowledge but he had not stated so with authenticity, therefore, she is also entitled to compensation in equal share with petitioner no 3 and 4.
30. Petitioner no 3 & 4 and respondent no 4 namely Master Tanuj, Baby Parul and Smt. Kusum shall get equal share of Rs. 1,76,000/- each and out of it Rs. 1,00,000/- alongwith proportionate interest be kept in fixed deposit for a period of ten years in a Nationalised Bank in 16 the name of petitioners, however, with no facility of loan or advance on this amount.
31. However, the petitioner can approach this tribunal for pre-mature withdrawal of amount in case of necessity.
32. As regards the liability, respondent no 1 and 2 being the driver and owner respectively are joint tort feasors are liable to pay the compensation to the petitioners. Respondent no 3 being the insurer is liable to indemnify the insured.
33. Accordingly, respondent no 3 is directed to pay the amount of compensation awarded to the petitioners and shall deposit the awarded amount with interest by way of cheque in the name of petitioners within 30 days from the date of order. No order as to cost. A copy of this order be supplied free of cost to the parties. File be consigned to the record room.
ANNOUNCED IN COURT TODAY GURDEEP SINGH the 19th of March, 2007 JUDGE:MACT:DELHI.