Delhi District Court
Kanchan Rastogi W/O Sh. Sunil Rastogi vs Shaukin S/O Asraph on 7 November, 2014
IN THE COURT OF SH. ARVIND KUMAR : PRESIDING OFFICER: MACT :
SHAHDARA : KARKARDOOMA COURTS : DELHI
M.A.C. Petition No: 98/11
Unique Case ID No. : 02402C0216742011
1. Kanchan Rastogi W/o Sh. Sunil Rastogi
2. Sunil Rastogi S/o R.K. Rastogi
Both are R/o H-38A, Shakarpur, Delhi ....... Petitioners
VERSUS
1. Shaukin S/o Asraph
R/o H. NO. 289, Village Mohd. Pur,
Kunhari, Tehsil & Distt. Haridwar,
Uttrakhand
2. Rajesh Kumar S/o Raphal Singh
R/o Wing No. 07, H. No. 11/10, Prem Nagar,
Dehradun, Uttrakhand
3. HDFC ERGO General Insurance Co. Ltd.
Ground Floor, Ambadeep Building 14,
Kastorba Gandhi Marg, New Delhi
.................Respondents
Presented on : 23.07.2011 Reserved for judgment on : 30.10.2014 Judgment delivered on : 07.11.2014 JUDG MENT
1. The present petition is filed by the petitioners u/s 166 & 140 of MV Act claiming compensation towards the death of one Sh. Ankit Rastogi, aged 20 years, in the road side accident dt. 19.06.2011.
2. The brief facts, as stated by petitioners, are that on 19.06.2011, Sh.
Ankit Rastogi along with one Sh. Aditya Chaudhary was going on a M.A.C. Petition No : 98/11 Page No. 1/9 motorcycle and when they reached village Bhatipur, Luxor road, Haridwar, Uttrakhand, a Dumper bearing no. UA-07P-1623 driven rashly, negligently and at high speed came from wrong side and hit the motorcycle. Sh. Ankit Rastogi suffered fatal injuries.
3. Respondent no. 1 and 2 did not contest the case and were proceeded ex-parte vide order dt. 31.08.2013.
4. The respondent no. 3/insurance company filed written statement admitting the insurance of the vehicle. It is further stated that the driver of the insured vehicle was not holding a valid and effective driving licence to drive the said vehicle at the time of alleged accident. It is also stated that the insurance company would not be liable if the vehicle was being plied without valid and effective permit. It is also stated that petition was bad for non-joinder of the driver, owner and insurance company of the motorcycle as parties.
5. On the basis of the pleadings following issues were framed :-
1. Whether the deceased Sh. Ankit Rastogi suffered fatal injuries in the accident occurred on 19.06.2011 due to rash and negligent driving of vehicle no. UP-07P-1623 (Dumper) being driven by respondent no. 1? (OPP)
2. Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? (OPP)
3. Relief.
6. The petitioner no. 2 examined himself as PW-1. The petitioners also examined Sh. Ashwani Kumar as PW-2. On the other hand respondents did not lead any evidence.
7. I have heard counsels for the parties and gone through the material on record. My findings on issues are as under : -
M.A.C. Petition No : 98/11 Page No. 2/9 ISSUES NO. 18. The petitioner no. 2 examined himself as PW-1 and deposed that his son met with an accident on 19.06.2011 with vehicle no. UA-07P-1623 and died. The PW-1 exhibited copy of ration card as Ex.PW-1/1, copy of adhar card of Smt. Kanchan Rastogi as Ex.PW-1/2, copy of adhar card of PW-1 as Ex.PW-1/3, copy of fees bills as Ex.PW-1/4, attested copy of FIR and charge sheet as Ex.PW-1/5. The PW-1 also marked the copy of the secondary school certificate as Mark A. During cross-examination, the PW-1 stated that he came to know about the accident at 10.30 am when one of the friends of the deceased called the mother of the deceased and told about the accident.
9. The testimony of PW-2, Sh. Ashwani Kumar is relevant on this issue.
The PW-2 stated that on 19.06.2011, Sh. Ankit Rastogi, Aditya Chaudhary and Aviral were going on two separate motorcycles and Sh. Aviral and PW-2 were on one motorcycle and Ankit Rastogi and Aditya Chaudhary were on other motorcycle and were going from Delhi to Haridwar and when they reached near Village Bhati Pur, Laksar Road, Haridwar a dumper bearing no. UA-07P-1623 driven rashly, negligently and at high speed came from opposite side and hit the motorcycle. The PW-2 stated that both the occupants of the motorcycle fell on the road and dumper overturned after the accident and both the occupants and motorcycle came under the dumper. During cross-examination, the PW-2 stated that on the day of accident he started from his home at about 7.00 o'clock and picked up one of his friend from Motibagh. The PW-2 stated that the other motorcycle was being driven by Sh. Aditya Chaudhary and Ankit Rastogi was the pillion rider and the other motorcycle was about 25 mtrs ahead of them and the accident had taken place on the road which was one way road.
M.A.C. Petition No : 98/11 Page No. 3/910. I have gone through the material on record. The FIR, postmortem report, site-plan and the testimony of the PW-1, taken together fully establish the death of the deceased caused by the injuries sustained by him in a road accident involving vehicle bearing registration No. UA-07P-1623. There is nothing on record to dispel the inference that deceased Sh. Ankit Rastogi, died on account of injuries sustained by him in a road accident which occurred on 19.06.2011 involving the vehicle bearing No. UA-07P-1623 being driven by its driver in a rash and negligent manner. There is no evidence in rebuttal. The issue no. 1 is decided in favour of petitioners and against the respondents.
ISSUE NO.2
11. The PW-1 deposed that deceased was his son and was 20 years of age and was a 3rd years student of B.Tech, Echelon Institute of Technology, Faridabad and after completion of his course, he would have got monthly salary of Rs. 40,000/- per month (approx.). The PW-1 exhibited copy of ration card as Ex.PW-1/1, copy of adhar card of Smt. Kanchan Rastogi as Ex.PW-1/2, copy of adhar card of PW-1 as Ex.PW-1/3, copy of fees bills as Ex.PW-1/4, attested copy of FIR and charge sheet as Ex.PW-1/5. During cross- examination, the PW-1 stated that the deceased had completed 2nd year of his B.Tech (IT) and had entered 3rd year and deceased was holding driving licence .
12. In the case of Haji Zainullah Khan( Dead) by Lrs. Vs. Nagar Mahapalika, Allahabad, 1994(5) SCC 667, death of a young boy, aged 20 years took place in an accident which happened in the year 1972. The deceased was a student of B. Sc Ist year( Biology), a compensation of Rs. 1,46,900/- was held to be on the lower side. It was not interfered and was rounded off to Rs. 1,50,000/- on the ground of long lapse of time since the M.A.C. Petition No : 98/11 Page No. 4/9 date of the accident.
13. The Hon'ble High Court, in the judgment titled, "Meenu Tognatta & Anr. Vs National Insurance Co. Ltd. and ors.", MAC App No. 238/2012, taken into consideration the capacity of the deceased to earn on the basis of their educational qualification and considered the potential income to be Rs. 18,000/- per month.
14. In Ganga Devi and others Vs. New India Assurance Company Ltd. & others, MAC APP 359/2008, decided by Hon'ble High Court on 23.11.2009 which related to the death of a student ( studying medicine) doing internship and was to be awarded MBBS degree in a short time, the Tribunal awarded a compensation of Rs. 9,35,352/-on the basis of the minimum wages of a Graduate. Hon'ble Delhi High Court observed that although the deceased was getting a stipend of Rs. 5000/- per month at the time of his death in the accident, he would have ultimately joined as a doctor at a salary ranging between Rs. 16000/- per month to Rs. 25,000/- per month. Thus, average monthly income of the deceased was taken as Rs. 18,000/- and after adding 50% towards future prospects, the compensation was enhanced to Rs. 21,36,000/-.
15. Further in "Ramesh Chand Joshi and others Vs. New India Assurance Company Ltd, MAC APP. No. 212-13/2006", Hon'ble Court, took salary of deceased doing B. E. from Delhi College of Engineering to be Rs. 38,333/- on the basis of offered salary to fresh under graduate.
16. In the matter titled "Krishan Kanta Marwah & Anr. Vs Reliance General Insurance Co. Ltd." MAC No. 478/2011, Hon'ble Delhi High Court took potential income of the deceased to be Rs. 15,000/- per month as the deceased was doing B.Sc. (Computers).
M.A.C. Petition No : 98/11 Page No. 5/917. I have gone through the material on record. The receipts Ex.PW-1/4 shows that deceased was student of B.Tech (IT), one receipt shows that fee for the 3rd Semester was also paid. The petitioner failed to establish that the deceased on completion of his degree would have got Rs. 40000/- per month nor examined any witness from aforesaid institute where deceased was pursuing his B.Tech. Keeping in view the aforesaid judgments and the facts and circumstances of case, the potential income of the deceased can be considered to be Rs. 15,000/- per month .
18. In the judgment of "Rajesh & Others Vs Rajbir Singh & Others" 2013 (6) Scale in C.A. No. 3860/2013 (Arising out of SLPC) No. 24825/2010) Hon'ble Supreme Court observed as under:-
"11 Since, the Court in Santosh Devi's case (Supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years".
"12 In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self- employed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
"20 .......Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium."
"21 .........There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses' , in the absence M.A.C. Petition No : 98/11 Page No. 6/9 of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/-."
19. Hon'ble Delhi High Court, in the judgment titled, "ICICI Lombard General Insurance Co. ltd. vs Angrej Singh and ors.", MAC App. No. 846/2011 decided on 30.09.2013, has taken the same view as taken in aforesaid judgment.
20. In the present case as noted above, the annual salary of the deceased at the time of death is taken to be Rs. 1,80,000/- per annum(Rs. 15,000/- x 12). Adding 50% of the amount, the annual income comes to Rs. 2,70,000/- (Rs. 1,80,000 + 90,000).
21. The petitioner no. 2 failed to establish that he was dependant on the deceased. Interest of justice in the present case would be met if 1/2 i.e. Rs. 1,35,000/- is deducted as the personal and living expenses of the deceased (as the deceased was bachelor). After such deduction the contribution to the family (dependants) is determined as Rs.1,35,000/- per annum. As per the judgment "Mohd. Hasnain & ors. Vs Jagram Meena & ors", MAC Appeal no. 152/14 passed by Hon'ble High Court, the multiplier applicable would be 18 as per the age of deceased at the time of accident (as per age mentioned in ration card, Ex.PW-1/1). Therefore, the total loss on dependency would be Rs. 1,35,000 x 18 = Rs. 24,30,000/-.
22. The claimants are entitled to a sum of Rs. 1,00,000/- towards the head of love and affection, Rs. 10,000/- towards loss of estate and Rs. 25,000/- towards funeral expenses. Thus, the compensation will be Rs. 25,65,000/-.
LIABILITY M.A.C. Petition No : 98/11 Page No. 7/9
23. Since Insurance company has admitted the policy as on date of accident therefore respondent no. 3 is liable to pay the compensation amount.
24. There being no evidence of violation of the policy condition and there being no evidence to support the permitted defence U/s. 149(2) of the M.V. Act, I am unable to grant the recovery rights. Therefore, insurance company shall make good the compensation in terms of the accepted policy.
RELIEF
25. In view of the above, I am directing to the respondent no. 3, insurance company to pay to the claimants a sum of Rs. 25,65,000/- towards compensation within one month. The accident occurred on 19.06.2011, therefore following judgment Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, I direct that the respondent No. 3 shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners.
26. For the aforesaid reasons, I pass the following award :-
AWARD
27. In view of the above the petition is allowed. The respondent No. 3, insurance company is liable to pay the compensation of Rs. 25,65,000/- within one month to the claimants. The respondent No. 3, insurance company shall also pay interest @ 9% p.a. (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioner. The claimants are entitled to the compensation in the following proportions along with corresponding interest :-
M.A.C. Petition No : 98/11 Page No. 8/9(a) Petitioner No. 1 shall get Rs. 20,52,000/- along with corresponding interest.
(b) Petitioner No. 2 shall get Rs. 5,13,000/- along with corresponding interest.
28. The award amount along with interest be deposited by insurance company, within 30 days in the court itself.
29. The insurance company is directed to give notice regarding the deposit of the amount to the petitioners at the address mentioned in the memo of parties and will also sent copy of notice to the counsel for petitioners at the address mentioned in the vakalatnama.
30. List for reporting compliance on 07.01.2015. The insurance company is directed to place on record the proof of deposit of the award amount, notice of the deposit and calculation of interest on the next date of hearing.
31. The insurance company shall deposit the award amount with interest up to the date of notice of deposit to the claimants with copy to their counsel. A copy of this order be given dasti to concerned parties.
Announced in the open ( Arvind Kumar )
court on 07.11.2014 Presiding Officer: MACT:
Karkardooma Court/Shahdara
Delhi
M.A.C. Petition No : 98/11 Page No. 9/9