Delhi District Court
Smt. Nageshwari Singh vs Sh. Sandeep Kumar on 16 February, 2010
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IN THE COURT OF SHRI GURVINDER PAL SINGH
JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL(WEST)
TIS HAZARI COURTS,DELHI
(Suit No. 567/08)
1. Smt. Nageshwari Singh
w/o Late Sh. Rajesh Kumar
2. Baby Priyanka d/o Late Sh. Rajesh Kumar
3. Master Bajra @ Brijesh Singh
s/o Late Sh. Rajesh Kumar
4. Baby Raj Laxmi d/o Late Sh. Rajesh Kumar
5. Baby Sonam d/o Late Sh. Rajesh Kumar
6. Sh. Shiv Shankar Singh s/o Late Sh. Hari Nandan
All r/o Village Dariya Pur, Tehsil & Distt.
Chandoli, U.P.
(petitioner No.2 to 5 being
minor represented through their natural guardian
i.e. petitioner No.1 i.e. mother)
...... Petitioners
VERSUS
1. Sh. Sandeep Kumar
s/o Late Ranvir Singh
R/o 327, Village Rani Khera,
Kanjhawala, New Delhi. (driver-cum-owner)
2. The New India Assurance Co. Ltd.
A-902 to 905, Hemkunth House,
Rajender Place, New Delhi-8(insurer)
....... RESPONDENTS
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Date of filing of the petition : 01/07/08 When reserved for judgment : 02/02/10 Date of final judgment/ award : 16/02/10. JUDGMENT / AWARD
Petitioners have claimed compensation of Rs. 25,00,000/-( Rupees Twenty Five Lacs) vide claim petition u/s 166 & 140 of the Motor Vehicles Act,1988 for fatal injuries sustained by Sh. Rajesh Kumar on 01/04/08 at about 11.15 a.m near Metro Workshop, Mundka, Delhi when the deceased was crossing the road on foot, while Motor Cycle no. DL-4S-BK- 1783, driven by respondent No.1 rashly and negligently at fast speed hit him , causing his fall on the road.
2. Respondent No.1 is the driver-cum-owner and respondent No.2 is the insurer of the offending vehicle.
3. Respondents were summoned and served.
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4. Both respondents filed the written statements and denied the claim of the petitioner.
5. Respondent No.2, insurer however, admitted the fact that vehicle No. bearing No. DL-4S-BK-1783 was insured with it vide Policy Number 321600/31/07/01/00015155 valid from 12/10/07 to 11/10/08.
6. Vide order dated 28/04/09 of this Tribunal, petitioners were awarded interim compensation of Rs. 50000/- alongwith the interest @ 7.5 % per annum from the date of filing of the petition till its realisation. Also vide orders dated 28/04/09 of this Tribunal, following issues were framed:-
1. Whether the deceased Sh. Rajesh Kumar had sustained fatal injuries on 01/04/08 at about 11.45 a.m. near Metro Workshop, Mundka, Nangloi, Delhi due to rash and negligent driving of respondent No.1 Sh. Sandeep Kumar while driving vehicle Motor Cycle bearing registration No. DL-4S-BK-1783?
2. Whether the petitioners are entitled to any compensation? If so, to what 4 amount and from whom?
3. Relief.
7. Petitioner No.1 Smt. Nageshwari ; Sh. Hans Narain as PW-2;
Sh. Parveen Kr. Gupta as PW-3; Sh. Rajiv Singh as PW-4 and Sh. Mahesh Singh as PW-5 are the examined petitioner's witnesses.
8. No respondent evidence was led despite opportunity.
9. I have heard submissions of Ld. Counsels for the parties, perused the record and given my thoughts to the contentions put forth. My issue-wise findings are as under:-
ISSUE NO.1
10. PW-2 testified that he had seen the occurrence on the fateful date, time and place and saw that while the deceased was crossing the road, Motor Cycle No. DL-4S-BK-1783, driven by respondent No.1 at fast speed, rashly and negligently hit him, causing his fall on the road and serious injuries on his person. The deceased was removed to Maharaja 5 Agrasen Hospital, Punjabi Bagh, where he was admitted till 04/04/08. The deceased succumbed to his injuries on 04/04/08.
11. Neither the respondent No.1 stepped into the witness box to testify in contrary to the version of PW-2 nor is there any other evidence on record to disbelieve or discredit the version of PW-2, either in toto or in particular.
12. A driver of a mechanically propelled vehicle is under bounden duty to observe necessary caution for avoiding striking other vehicles, persons, the users of the road ahead. Having failed to observe such necessary care and caution, being oblivious of said duty, respondent No.1 was berserk locomotion since he struck the person of the deceased at the spot causing him fatal injuries. Respondent No.1 was thus negligent.
13. The version of petitioner is lent corroboration by the attested copy of the charge-sheet, Ex. C-1 (colly.) of case FIR No. 219/08 u/s 6 279/304-A IPC, P.S. Nangloi, in terms of which the investigating agency concluded the investigation, opining the commission of said offences by respondent No.1 and he being responsible for grievous injuries on the person of petitioner.
14. As per the copy of the post mortem report,Ex. PW3/A on the body of the deceased, the cause of death has been opined to be ' coma as a result of head injury consequent to Road side accident.'
15. Above discussion leads me to the conclusion that petitioners have been able to prove that deceased Sh. Rajesh Kumar had sustained fatal injuries due to said rash and negligent driving on the part of respondent No.1. Accordingly, issue No.1 is decided in favour of the petitioners and against the respondents.
ISSUE NO. 2
16. The appropriate method of calculating the compensation in fatal cases is multiplier method. In catena of decisions, the Hon'ble Supreme Court of India had held that in India the multiplier method is 7 appropriate for calculation of compensation. It was so enunciated by their Lordship Wright in "Davies Vs. Powell Duffregn Associated Collieries Ltd" reported in 1942 AC601, that the appropriate method to calculate compensation is the multiplier method. In the cases of 'General Manager, Kerela State Road Transport Corporation, Trivendram Vs Susamma Thomas (Mrs.) & Ors', (1994) 2 SCC 176; ( 2 ) 'Managing Director, TNSTC Ltd. Vs K.I. Bindu & Ors'. (2005) 8SCC 473; (3) 'Gobald Motor Service Ltd. & Anr Vs RMK Veluswami & Ors', AIR 1962 SC 1 and of late, in the case of 'Syed Basheer Ahamad & Ors. V Mohd Jameel and Anr'. in Civil Appeal No. 10 of 2009, decided by the Division Bench of the Hon'ble Supreme Court on 06/01/2009, also in the case of ' Smt. Sarla Verma & ors Vs. Delhi Transport Corporation & Anr, reported in III (2009) ACC 708 (SC), decided by the Division Bench of the Hon'ble Supreme Court on 15/04/09, the payment of compensation in lump-sum to legal representatives of deceased by multiplier method has been approved.
17. Starting point for calculating amount of compensation to be paid 8 to dependents of deceased in a motor accident claim is the amount of monthly income which the deceased was earning; then there is an estimate of what was required for his personal and living expenses. The balance will generally be turned into lump sum by taking certain number of years of purchase. The choice of multiplier is ascertained by the age of the deceased or that of the claimant whichever is higher. THE MULTIPLICAND
18. As per the claim petition and copy of ration card, Ex. PW1/1, the age of the deceased is 32 years. I take the age of the deceased as 32 years accordingly.
19. PW-1 testified that her husband was Masson Foreman with M/s Alpine Samsung HCC Joint Venture, earning Rs. 7,500/- per month.
20. PW-5 Sh. Mahesh Singh testified that he was Supervisor with Vibhuti Narayan Singh Contractor and has proved the copies of employment register, wages register and over time register regarding the entries of deceased employee in their concern as Ex. PW5/A (colly.). As 9 per PW-5, the deceased Sh. Rajesh Kumar was drawing Rs. 4680/- as monthly salary excluding overtime. PW-5 clarified that in their concern, deceased was working only w.e.f. February,2008. Accordingly, as per PW- 5, the deceased had worked in said concern only for period of 2 months i.e. in February and March, 2008.
21. Adverting to Ex. PW5/A(colly.), it is revealed that the deceased was not getting any fixed salary but was getting the same for the units of work done which was fixed @ Rs.156/- per unit. For the month of February,2008, the deceased had got Rs. 3276/- as basic salary for 21 units of work done @ 156 per unit and 12% provident fund was deducted viz., Rs. 393/- and the carry home salary of deceased was Rs. 2,883/-. No overtime charges were received by the deceased in February, 2008. For the month of March, 2008, the deceased got Rs. 3432/- as basic wages for 22 units for the work done and Rs. 4017/- for overtime done and out of the said sum 12% for provident fund of Rs. 412/- was reduced. For 30 units of work done, the amount of earnings for deceased would be Rs. 4680/- @ 156/- per unit. In February,2008, the deceased had done 21 10 units of work. In March, 2008, deceased had done 22 units of working besides overtime. It is proved on record accordingly that such earnings of deceased were fluctuating and not fixed, depending purely on the amount of units of work done and overtime done. Such work was also done only for a period of two months. PW-5 also deposed that their concern was private and only one month notice was required to be given to the employee for termination of his services. The such employment of deceased was accordingly not permanent. The monthly earnings of deceased were not fixed, was fluctuating,depending actually on the efforts put and the figures available being only regarding for two months prior to accident. I do not deem it fit to compute the compensation on the basis of such earnings of deceased.
22. Be that as it may, the deceased was a Masson Foreman and skilled worker. In absence of any cogent evidence of monthly earnings of the deceased, the monthly income of the deceased is determined on the basis of the minimum wages notified under the Minimum Wages Act by the Delhi Government in the category of a skilled person, which was Rs. 11 4057/- on the day of accident.
23. Noting that to neutralize increase in cost of living and price index, minimum wages are increased from time- to-time. Minimum wages tend to increase by 100% every 10 years.
24. It is now well settled that while estimating future loss of income, the Court has to take into account increase in minimum wages due to inflation and rise in price index. [ See (1) K. Narsimha Murthi V. The Manager, Oriental Insurance Co. Ltd. & Anr.,reported in 2004 ACJ 1109; (2)Oriental Insurance Co. Ltd. Vs. Vijay Kumar Mittal, reported in III(2007)ACC 676 and (3) Santosha Devi Vs. Abdul Kareem & ors, in MAC Appeal No.440/2009, decided on 08/10/09 by Hon'ble Mr. Justice J. R. Midha]
25. Thus, Tribunal has to consider future increase in minimum wages of deceased while awarding compensation to dependents of deceased.
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26. Benefit of future increase in the income of the deceased is to be given. Thus mean average income of the deceased is determined as Rs. 6085/50 p. per month [{minimum wage+ double the minimum wage} divided by 2] for purpose of computation of compensation in this case.
27. Petitioner No.1, the wife of the deceased; petitioners No.2 to 5 the minor children of the deceased and petitioner No.6, the old aged father of the deceased were the six dependents on the earnings of the deceased.
28. In terms of law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra), since there were six dependents on the earnings of the deceased, the deduction towards personal and living expenses of the deceased, would be one-fourth (1/4th ), out of his monthly earnings. The said deduction towards the personal and living expenses of the deceased out of his said monthly income would be Rs. 1521/37 p.( Rs.6085/50 p. divided by 4). The loss of monthly dependency to the legal 13 representatives of the deceased accordingly is Rs. 4564/13 p.(Rs. 6085/50 p. minus Rs. 1521/37 p.).
MULTIPLIER
29. Considering the young age of the petitioner No.1 viz., 27 years as per petition and Ex. PW1/3, PAN Card;the ages of the minor children of the deceased viz., 10 years; 8 years; 5 years and 3 years respectively, it would be expedient in the interest of justice to adopt the multiplier as per the age of the deceased and not as per the age of the father of the deceased, since widow and children of the deceased have a long life ahead of them to be led and various kinds of expenses are required to be met. Accordingly, in terms of law laid in the case of Smt. Sarla Verma(supra) and as per the age 32 years of the deceased, multiplier of 16 (for the age group 31 years to 35 years )is being adopted in this case.
30. The total loss of dependency of the petitioners would accordingly be Rs. 8,76,300/- ( Rs. 4564/13 p x 12x 16). COMPENSATION FOR LOSS OF CONSORTIUM
31. In terms of law laid by the Apex Court in the case of Smt. Sarla 14 Verma & Ors (Supra), the claimant, the widow of deceased, petitioner No.1 is entitled to sum of Rs. 10,000/- under the head of loss of consortium.
COMPENSATION FOR LOSS OF ESTATE
32. In terms of law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra), the claimants are entitled to sum of Rs. 10,000/- under the head of loss of estate.
COMPENSATION TOWARDS FUNERAL EXPENSES
33. In view of the law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra) , the claimants are entitled to Rs. 5,000/- under this head.
COMPENSATION FOR LOSS OF LOVE AND AFFECTION.
34. No amount would suffice to compensate the loss of love and affection to petitioners. Yet, relying upon the pronouncements of Hon'ble Mr. Justice J. R. Midha in case of ' Rajesh Tyagi & ors Vs. Jaibir Singh & Ors as FAO No. 842/2003, orders dated 08/05/09, the claimants, six in number, are entitled to sum of Rs. 10,000/- each i.e., totalling Rs. 60,000/- as loss of love and affection.
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COMPENSATION FOR MEDICAL EXPENSES INCURRED FOR TREATMENT OF DECEASED BEFORE DEATH
35. The petitioners have placed on record the bills of medical expenses incurred for treatment of deceased before death vide Ex. PW4/B and Ex. PW1/7 (colly.). Total of these bills comes to Rs. 75,035/-.The petitioners are, therefore, entitled to sum of Rs. 75,035/- as compensation under this head.
36. In view of the above discussion, the total compensation to which the petitioners are entitled to comes as under:-
1. Compensation for Loss of dependency Rs. 8,76,300/-
2. Compensation for loss of consortium Rs. 10,000/-
3. Compensation for loss of estate Rs. 10,000/-
4. Compensation for funeral expenses Rs. 5,000/-
5. Compensation for loss of love and affection Rs. 60,000/-
6. Compensation for Medical expenses incurred for treatment of deceased before death Rs. 75,035/-
_____________ Rs. 10,36,335/-
Less Interim Compensation - Rs. 50,000/-
Balance payable sum ______________
Rs. 9,86,335/-
______________
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37. In view of the aforesaid discussions, it is hereby held that petitioners are entitled to Rs. 9,86,335/- as compensation alongwith interest @ 7.5 % per annum from the date of filing of the petition till its realization from the respondents.
RELIEF
38. In view of the above discussion, I am of the opinion that the petitioners are entitled to a sum of Rs. 9,86,335/- as compensation with interest @ 7.5 % per annum from the date of filing of the petition till realisation from the respondents. payable by the respondent No.2,insurer. APPORTIONMENT OF COMPENSATION
1.Smt. Nageshwari Singh (wife) Rs. 4,86,335/-
2. Baby Priyanka( daughter) Rs. 1,00,000/-
3. Master Bajra @ Brijesh Singh (son) Rs. 1,00,000/-
4. Baby Rajlaxmi (daughter) Rs. 1,00,000/-
5. Baby Sonam (daughter) Rs. 1,00,000/-
6. Sh. Shiv Shanker Singh Rs. 1,00,000/-
39. Since the amount awarded should not be frittered away by beneficiaries owing to the ignorance, illiteracy etc., the Hon'ble Supreme Court of India in a case titled 'G. M. Kerala State Road Transport 17 Corporation Vs. Susamma Thomas' reported in 1994(2) SCC 176, has laid guidelines pronouncing that in a case of compensation for death, it is appropriate that Tribunals do keep in mind the principles enunciated by this court in 'Union Carbide Corporation Vs. Union of India', 1991(4) SCC 584, in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation. Guidelines inter alia included of investment of share of the claimants in FDRs in nationalized banks with conditions that bank will not permit any loan or advance on the fixed deposits and interest on the amount invested is paid monthly / periodically directly to the claimant and such investment may be made in more than one fixed deposit. In case of any exigency, claimants are at liberty to apply to Tribunal for withdrawal of such investment.
40. In terms thereof, out of the award amount, 50% amount of petitioner No. 1 be invested in shape of three FDRs of equal (almost) in the name of the said claimant/ petitioner for a period of 7 years in State Bank of India. The award amount of petitioners No. 2 to 5 (minor children 18 of deceased) be invested in shape of FDRs in the name of the said claimants / petitioners till they attain the age of majority in State Bank of India. 50% amount of petitioner No. 6 be invested in shape of two FDRs of equal (almost) in the name of the said claimant/ petitioner for a period of 3years in State Bank of India. The FDRs shall have no facility of loan or advance. Petitioners can withdraw the interest monthly. Minor petitioners can so withdraw interest through her guardian mother, petitioner No.1. However, petitioners/claimants are at liberty to take steps for premature encashment in case of exigency, as per law laid before this Tribunal.
41. State Bank of India,Tis Hazari, has agreed to open Special Fixed Deposit Accounts for the victims of road accidents.
42. Aforesaid fixed deposits are to be made by State Bank of India, Tis Hazari in the following manner:-
(1) The State Bank of India,Tis Hazari, shall open separate Savings Accounts in the name of claimants and the entire 19 interest on the aforesaid fixed deposits be credited in the said accounts.
(2) The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Savings Accounts. (3) Withdrawal from the aforesaid account shall be permitted to the claimants after due verification and the Bank shall issue photo identity Card /Pass Books with attested photographs to claim to facilitate their identity.
(4) No cheque book be issued to the claimants without the permission of this Court.
(5) Half yearly statement of account be filed by the Bank in this Court.
(6) The original FDRs shall be retained by the Bank in the Safe custody. However, the original Pass Book shall be given to the claimants alongwith the photocopy of the FDRs. (7) The original Fixed Deposit Receipts shall be handed over to the claimants at the end of the fixed deposit period. (8) No loan, advance or withdrawal shall be allowed on the said 20 FDRs without the permission of this Court. (9) On the request of the claimants, the Bank shall transfer the Savings Account to any other branch of State Bank of India according to the convenience of the claimants.
43. Respondent No.2, The New India Assurance Co. Ltd.is directed to deposit the cheques in the names of the petitioners/claimants within 30 days.
File be consigned to Record Room.
Announced in open court (Gurvinder Pal Singh)
today i.e. 16/02/10 Judge, MACT(West)
Delhi.