Delhi District Court
Smt. Jay Devi vs Sh. Ravi Verma S/O Sh. Chander Parkash ... on 27 July, 2015
IN THE COURT OF MS. RAVINDER BEDI : PRESIDING
OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNAL :
KARKARDOOMA COURTS : EAST DISTRICT : DELHI
MAC PETITION NO.: 529F OF 2013
UNIQUE CASE ID NO: 02402C0412032013
1. Smt. Jay Devi
W/o Sh. Chandresh Kumar @ Chand Kumar ... Wife
2. Master Sunil Kumar S/o Sh. Chandresh Kumar ... Son
3. Baby Geeta D/o Sh. Chandresh Kumar ... Daughter
4. Baby Anjali D/o Sh. Chandresh Kumar ... Daughter
(Claimants no.2 to 4 being minor are
represented by their mother/claimant no.1)
All R/o H.No.83, Amoli Hisampur,
Ram Nagar, Barabanki, U.P. ... Claimants
VERSUS
1. Sh. Ravi Verma S/o Sh. Chander Parkash Verma
R/o G815, 2 Floor, Rohini, Sector16, Delhi85. ... Driver
nd
2. Sh. Ramesh Dagar S/o Sh. Bhagat Singh
R/o H.No. 30/2, Rajeev Colony,
Sector25, Ballabhgarh, Faridabad, Haryana. ... Owner
3. Shri Ram General Insurance Co. Ltd.
Off. At : 1010261001, Ground Floor, Arya Samaj
Road, Naiwala, Karol Bagh, New Delhi. ... Insurer
...Respondents
MAC NO. 529F/13 SMT. JAY DEVI VS. RAVI VERMA & ORS. PAGE : 1/15 Represented by : Ms. Pooja Goel, Counsel for claimants.
Respondents no.1 and 2 are ex parte.
Mr. A.K. Jha, Counsel for Respondent no. 3.
Date of institution : 16.12.2013 Reserved for orders : 17.07.2015 Date of Award : 27.07.2015 A W A R D
1. The present DAR is filed by IO on 16.12.2013 against the Driver Ravi Verma, Owner Ramesh Dagar and Shri Ram General Insurance Co. Ltd. The claimants have claimed compensation of Rs.20.00 lac for the death of deceased Chandresh Kumar @ Chand Kumar, who passed away in a road accident dated 20.11.2013.
2. The brief facts of the case are that on 20.11.2013 at about 7.00 AM, deceased, a rickshaw puller was going on his rickshaw. While he reached on Vikas Marg Road, Shakarpur, Delhi, suddenly a vehicle i.e. Toyota Innova bearing registration no. HR38RT8903 at a high speed and in a zig zag manner, driven by its driver/ respondent no.1 and hit him. Due to impact, the deceased suffered grievous injuries and was taken to LBS Hospital where during treatment, he succumbed to his injuries. Postmortem of the mortal remains was conducted at GTB Hospital. As per the statement of Incharge, PCR Van, ASI Surender Kumar, the driver was apprehended on the spot. MAC NO. 529F/13 SMT. JAY DEVI VS. RAVI VERMA & ORS. PAGE : 2/15 A case u/s. 279/304A IPC was registered vide FIR No. 1188/13 at Police Station Shakarpur against the respondent no. 1.
3. It is stated that the respondent no.1 is the driver, the respondent no. 2 is the Insured and the respondent no. 3 is Insurer; therefore, they all are jointly and severally liable to pay the compensation to claimants.
4. The respondents no. 1 and 2 entered their appearance through their Advocate Mr. J.M. Akbar but later stopped appearing. They did not file any defence and were proceeded ex parte vide order dated 23.05.2014.
5. The Respondent no.3 in its Written Statement admitted that offending vehicle was duly insured vide Insurance Policy in the name of respondent no. 2 for a period from 25.04.2013 to 24.04.2014.
6. On the basis of the pleadings, following issues were framed vide order dated 23.05.2014 :
i) Whether deceased suffered fatal injuries in a road accident on 20.11.2013 involving vehicle i.e. Tavera bearing registration No. HR38RT8903 driven by respondent no.1 in a rash and negligent manner? (OPP)
ii) Whether the petitioners are entitled for any MAC NO. 529F/13 SMT. JAY DEVI VS. RAVI VERMA & ORS. PAGE : 3/15 compensation, if so, to what amount and from whom?
iii) Relief.
7. Smt. Jay Devi, wife of the deceased Chandresh Kumar @ Chand Kumar appeared as PW1 and filed her affidavit as Ex.PW1/1. She relied upon the documents i.e. DAR as Ex.PW1/1, her Voter I Card as Ex.PW1/2, Voter I Card of deceased as Ex.PW1/3, Certificate from Pradhan as Ex.PW1/4, Death Certificate of deceased as Ex. PW1/5 and Receipt of release of deadbody as Mark A.
8. The Respondent no. 3 has examined Sh. Amit Kumar Sharma as R3W1 who has filed his affidavit Ex.R3W1/X. He testified the documents i.e. Power of Attorney as Ex.R3W1/A, Insurance Policy as Ex.R3W1/B, Notice U/o 12 Rule 8 CPC issued to Insured and postal receipt as Ex.R3W1/C and R3W1/D, Notice U/o 12 Rule 8 CPC issued to driver and postal receipt as Ex.R3W1/E and R3W1/F, Chargesheet, Report submitted by IO on 26.3.15 and DAR as Ex.R3W1/G, Report dated 26.04.2014 and Challan dated 07.11.2013 issued by Enforcement Staff Transport Department as Ex.R3W1/H and as Ex.R3W1/I. The company also examined IO SI Satyapal Singh as R3W2 who stated that deceased Chandresh Kumar and Chand Kumar is the name of one and the same person.
9. I have heard Ld. Counsels for parties, perused the entire material MAC NO. 529F/13 SMT. JAY DEVI VS. RAVI VERMA & ORS. PAGE : 4/15 carefully in the light of relevant statutory provisions of law, looked into the judgments relied upon in support of the respective submissions and my observations on the issues are as follows : ISSUE NO.1 :
Whether deceased suffered fatal injuries in a road accident on 20.11.2013 involving vehicle i.e. Toyota Innova bearing registration No. HR38RT8903 driven by respondent no.1 in a rash and negligent manner? (OPP)
10.For succeeding in a DAR Claim filed under Section 166 of the M.V. Act, it is for the claimants to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver. PW1 has testified that on 20.11.2013, her husband sustained fatal injuries due to rash and negligent driving of Toyota Innova bearing registration No. HR38RT8903 by respondent no.
1. She testified that her husband was hale and hearty and was aged about 46 years. She testified that her husband was a rickshaw puller and was the only earning member of the family. In cross examination, however, she stated that she did not witness the accident.
11.The facts are supported and corroborated by the IO of the case, who had conducted the investigation in the matter and filed the MAC NO. 529F/13 SMT. JAY DEVI VS. RAVI VERMA & ORS. PAGE : 5/15 Chargesheet against the respondent no. 1 u/s. 279/304A IPC in FIR No.1188/13 at P.S. Shakarpur. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Hon'ble Supreme Court held that in a petition under Section 166 of the Act, the claimants were merely to establish their case on the touchstone of preponderance of probabilities while dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of the Judgment is extracted hereunder :
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
12.The report in Bimla Devi (Supra) was relied on by the Hon'ble Supreme Court in its judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."
13.In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors. : 2009 ACJ 287, the Hon'ble High Court of Delhi held :
"The last contention of the appellant insurance company is that the respondents - claimants should have proved negligence on the part of the driver and in this regard the MAC NO. 529F/13 SMT. JAY DEVI VS. RAVI VERMA & ORS. PAGE : 6/15 counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. Meena Variyal (Supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of the vehicle in question ;
(ii) criminal record showing completion of investigation of police and issue of chargesheet under Sections 279/304A, Indian Penal Code against the driver; (iii) certified copy of F.I.R., wherein criminal case against the driver was lodged;
and (iv) recovery memo and mechanical inspection report of vehicle in question and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver".
14.In a recent judgment of Hon'ble Delhi High Court in United India Insurance Company Ltd. Vs. Deepak Goel & Ors., 2014 (2), T.A.C. 846 (Del.), it was held that in a case, where FIR is lodged, chargesheet is filed, then the documents mentioned above are sufficient to establish the fact that the driver of the vehicle in question was negligent in causing the accident particularly when there was no defence available from his side. In the case titled as Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh :
MAC NO. 529F/13 SMT. JAY DEVI VS. RAVI VERMA & ORS. PAGE : 7/15 2009 (3) AD (Delhi) 310, it was noted that there is nothing on record to show that the claimants had any enmity with the driver of the vehicle in question so as to falsely implicate him in the case.
The issue thus stands decided in favour of claimants holding that the accident happened as a result of negligent driving by respondent no.1 in which the deceased sustained fatal injuries.
ISSUE NO.2 :
Whether the petitioners are entitled for any compensation, if so, to what amount and from whom?
15.PW1/wife of deceased stated that her husband was taken to LBS Hospital where during treatment, he passed away. The Postmortem of mortal remains was conducted vide Postmortem Report no. 1541/13 dated 20.11.2013 shows the cause of death as 'Shock as a result of antemortem head injuries produced by blunt force impact'.
16.As per Voter I Card Ex.PW1/3, year of birth of deceased is shown as 1968. The age of deceased is thus taken as 45 years at the time of accident. PW1/wife of deceased testified that deceased was a rickshaw puller and was earning around Rs.10,000/ p.m. She stated that he was also known by the name of Chand Kumar. IO SI Satyapal Singh was examined as court witness, who endorsed the MAC NO. 529F/13 SMT. JAY DEVI VS. RAVI VERMA & ORS. PAGE : 8/15 fact that the deceased was also known by the name of Chand Kumar. PW1 further stated that the deceased was the only earning member of the family which consisted of herself besides her three minor children. However, in the absence of any supporting material in respect of his avocation or earnings, his salary has to be taken only as per the minimum wages. The income of deceased can be taken as the one applicable to a unskilled workman as per Minimum Wages. It was Rs.8,086/ per month at the relevant time. The monthly salary of deceased is thus taken as Rs.8,086/.
17.In a recent judgment in HDFC Ergo General Insurance Co. Ltd. Vs. Lalta Devi & Ors., (Decided on 12.1.2015), it was observed that in view of the observations of Hon'ble Apex Court in Reshma Kumari & Ors. Vs. Madan Mohan & Anr., (2013) 9 SCC 65 and further in the judgment of Hon'ble Apex Court in Union of India & Ors. Vs. S.K. Kapoor, (2011) 4 SCC 589, the three Judge Bench Decision in Reshma Kumari & Ors. (Supra) was held to be taken as a binding precedent. Therefore, in view of the judgment of Hon'ble High Court of Delhi in Lalta Devi (Supra), this court is of the view that in the absence of any evidence of his future prospects having led, he is not entitled to any future prospects. MAC NO. 529F/13 SMT. JAY DEVI VS. RAVI VERMA & ORS. PAGE : 9/15
18.As per record deceased was 45 years of age as on the date of accident. In view of judgments rendered in "Sarla Verma & Ors. Vs. DTC & Anr. (2009) ACJ 1298", "National Insurance Co. Ltd. V/s. Shyam Singh & Ors. (2011) 7 SCC 65" and Lalta Devi & Ors (Supra). In view of "Sarla Verma (Supra)", it is the petitioners no. 1 to 4, who are entitled for the compensation in the absence of any evidence to the contrary. Thus, 1/4th of the income of deceased has to be deducted towards his living expenses. After such deduction, the contribution to the family (dependents) comes to Rs.6,065.00 th (Rs.8,086.00 - Rs.2,021.00 i.e. 1/4 ). Thus, the compensation under the head Loss of Dependency would be Rs.10,18,920/ (Rs. 6,065.00 x 12 x 14).
19.In view of the judgments in Rajesh & Ors. Vs. Rajbir Singh & Ors. (Supra) and another in Kalpana Raj & Ors. Vs. Tamilnadu STC, (2014) ACJ 1388, the claimants are also entitled to a sum of Rs.1,00,000/ towards loss of consortium, Rs.1,00,000/ towards loss of love and affection, Rs.10,000/ towards loss of Estate and Rs.25,000/ towards funeral expenses.
20.The claimants are entitled for the total amount of compensation towards all the heads, which is as follows : MAC NO. 529F/13 SMT. JAY DEVI VS. RAVI VERMA & ORS. PAGE : 10/15 S. No. On Account of Amount (Rs.) 1 Loss of dependency Rs.10,18,920.00 2 Loss of Love & affection Rs. 1,00,000.00 3 Loss of Consortium Rs. 1,00,000.00 4 Funeral Expenses Rs. 25,000.00 5 Loss of Estate Rs. 10,000.00 Total = Rs.12,53,920.00 I accordingly award an amount of compensation of Rs. 12,53,920/ in favour of the claimants and against respondents.
LIABILITY
21.The insurance company has examined Sh. Amit Kumar Sharma as R3W1 who testified the documents i.e. Insurance Policy as Ex.R3W1/B, Notice U/o 12 Rule 8 CPC issued to Insured and driver and the postal receipt as Ex.R3W1/C and R3W1/D, Ex.R3W1/E and R3W1/F to produce the DL, Chargesheet, Report submitted by IO on 26.3.15 and DAR as Ex.R3W1/G, Report dated 26.04.2014 and Challan dated 07.11.2013 issued by Enforcement Staff Transport Department as Ex.R3W1/H and as Ex.R3W1/I.
22.Ld. counsel for the insurance company has placed reliance upon the MAC NO. 529F/13 SMT. JAY DEVI VS. RAVI VERMA & ORS. PAGE : 11/15 judgment of The New India Assurance Co. Ltd. Vs. Kalia Devi & Ors., (Decided on 3.11.2014 by Hon'ble Delhi High Court), National Insurance Co. Ltd. Vs. Swaran Singh & Ors. (2004)3SCC 297, Skandia Insurance Co. Ltd. Vs. Kokila Ben Chandravadan MANU/SC/0662/1987, (1987)2SCC 654, Sohan Lal Passi Vs. Sesh Reddy (1996) 5SCC 21, The New India Assurance Co. Ltd. Vs. Kamla (2001) 4SCC 342 and Kusumlata Vs. Satbir.
23.The Report dated 26.04.2014 of IO besides the record clearly reveals that the driver was not holding any driving licence as on the date of accident. The record shows that the vehicle was being driven by its driver Ravi Verma without any Driving Licence. The notices Ex.R3W1/E and Ex.R3W1/F were sent by registered post upon driver and owner and were correctly addressed. Therefore, there is presumption of service of notice. The respondents no.1 and 2 have failed to produce the driving licence, even during proceedings before Tribunal. An inference can be drawn that there was no valid driving licence with the driver at the time of accident. The insurance policy conditions thus have been violated and therefore, insurance company is entitled to recovery rights against respondents no. 1 and 2 as per law.
MAC NO. 529F/13 SMT. JAY DEVI VS. RAVI VERMA & ORS. PAGE : 12/15 AWARD
24.The respondent No.3/Insurance company, in the first instance, is directed to pay the compensation of Rs.12,53,920/ within one month to claimants (except for the period not specifically allowed and including the interim award amount) but with liberty to recover the same from respondents no.1 and 2. The claimant is also entitled to the interest @ 12% p.a. on the total compensation amount from the date of filing of DAR till realization. (The New India Assurance Co. Ltd. Vs. Gopali & Ors., 2012 ACJ 2131 SC, Jiju Kuruvila & Ors. Vs. Kunjujamma Mohan & Ors., 2013 ACJ 2141 SC, Puttamma Vs. K.L. Naraynan Reddy & Ors., 2014 ACJ 526 SC). The award amount be deposited in Oriental Bank of Commerce Branch F21, Preet Vihar, Main Vikas Marg, Delhi.
25.Out of total award amount, let an amount of Rs.53,920/ be released in favour of petitioner no. 1 (wife of deceased) forthwith and an amount of Rs.4,50,000/ shall be deposited in her name in the form of Two FDRs of equal amount for a period of Six Years with the release of periodical monthly interest in her favour.
MAC NO. 529F/13 SMT. JAY DEVI VS. RAVI VERMA & ORS. PAGE : 13/15
26.Entire remaining amount be kept in the form of three FDRs of equal amount in favour of petitioners no.2, 3 & 4 (children of deceased), till they attain the age of majority, with the release of monthly periodical interest.
27.The interest on the aforesaid Fixed Deposits shall be paid monthly by Automatic Credit of Interest in the Savings Account of claimants.
28.Withdrawal from the said Account shall be permitted to claimants after due verification and Bank shall issue Photo Identity Card to claimants to facilitate Identity.
29.The original Fixed Deposit Receipts shall be retained by the Bank in safe custody. However, original Passbook shall be given to the claimants with photocopy of FDRs. On expiry of period of each FDR, the Bank shall automatically credit the maturity amount in Savings Account of beneficiary.
30.No loan, advance, withdrawal shall be allowed on the said FDR without permission of this court.
31.Half yearly statement of account be filed by the Bank in this court.
32.On request of claimants, Bank shall transfer the Savings Account to State Bank of India, Ram Nagar, U.P. Branch.
33.The award amount alongwith interest be deposited by respondent MAC NO. 529F/13 SMT. JAY DEVI VS. RAVI VERMA & ORS. PAGE : 14/15 no. 3/Insurance Company, within 30 days in the court. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/.
File be consigned to record room.
Announced in the open court
Dated : 27th July, 2015 (MS. RAVINDER BEDI)
PRESIDING OFFICER MACT (EAST)
KARKARDOOMA COURTS, DELHI.
MAC NO. 529F/13 SMT. JAY DEVI VS. RAVI VERMA & ORS. PAGE : 15/15
MAC NO. 529F/13
27.07.2015 :
Present : Ld. Counsel for parties.
Vide separate order announced in the open court today, the DAR Claim stands allowed. The respondent No.3/Insurance company, in the first instance, is directed to pay the compensation of Rs. 12,53,920/ within one month to claimants (except for the period not specifically allowed and including the interim award amount) but with liberty to recover the same from respondents no.1 and 2. The claimant is also entitled to the interest @ 12% p.a. on the total compensation amount from the date of filing of DAR till realization. (The New India Assurance Co. Ltd. Vs. Gopali & Ors., 2012 ACJ 2131 SC, Jiju Kuruvila & Ors. Vs. Kunjujamma Mohan & Ors., 2013 ACJ 2141 SC, Puttamma Vs. K.L. Naraynan Reddy & Ors., 2014 ACJ 526 SC). The award amount be deposited in Oriental Bank of Commerce Branch F21, Preet Vihar, Main Vikas Marg, Delhi.
Out of total award amount, let an amount of Rs.53,920/ be released in favour of petitioner no. 1 (wife of deceased) forthwith and an amount of Rs.4,50,000/ shall be deposited in her name in the form of Two FDRs of equal amount for a period of Six Years with the release of periodical monthly interest in her favour.
Entire remaining amount be kept in the form of three FDRs of equal amount in favour of petitioners no.2, 3 & 4 (children of deceased), till they attain the age of majority, with release of monthly periodical interest.
The interest on the aforesaid Fixed Deposits shall be paid monthly by Automatic Credit of Interest in the Savings Account of claimants.
Withdrawal from the said Account shall be permitted to MAC NO. 529F/13 SMT. JAY DEVI VS. RAVI VERMA & ORS. PAGE : 16/15 claimants after due verification and Bank shall issue Photo Identity Card to claimants to facilitate Identity.
The original Fixed Deposit Receipts shall be retained by the Bank in safe custody. However, original Passbook shall be given to the claimants with photocopy of FDRs. On expiry of period of each FDR, the Bank shall automatically credit the maturity amount in Savings Account of beneficiary.
No loan, advance, withdrawal shall be allowed on the said FDR without permission of this court.
Half yearly statement of account be filed by the Bank in this court.
On request of claimants, Bank shall transfer the Savings Account to State Bank of India, Ram Nagar, U.P. Branch.
The award amount alongwith interest be deposited by respondent no. 3/Insurance Company, within 30 days in the court. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/.
Be put up for compliance for 08.09.2015.
(MS. RAVINDER BEDI) PO MACT(EAST)KKD./DELHI/27.07.2015 MAC NO. 529F/13 SMT. JAY DEVI VS. RAVI VERMA & ORS. PAGE : 17/15