Delhi District Court
Manoj Kumar vs . Abhinav Kumar on 29 November, 2013
Manoj Kumar Vs. Abhinav Kumar
1
IN THE COURT OF SH. SANJIV JAIN : PRESIDING OFFICER : MACT
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
FIR No. : 161/12 : PS : Vasant Vihar
Misc. No. : 136/12
Manoj Kumar
S/o Sh. Lekh Ram Gami
R/o H. No. 339, ABC,
Budh Vihar, Munirka,
New Delhi
...... Claimant
Versus
1. Abhinav Kumar
S/o Sh. Sunil Kumar
R/o A39, Cosy Apartament,
Sector9, Rohini
Delhi (Driver cum Owner)
2. ICICI Lombard General Insurance Co. Ltd.
Space No. 315, 3rd Floor,
Aggarwal City Mall, Road No. 44,
Pitam Pura, Delhi (Insurer)
...... Respondents
Date of Institution : 16.07.2012
Date of reserving of judgment/order : 12.11.2013
Date of pronouncement : 29.11.2013
FIR No. : 161/12, PS : Vasant Vihar Page No. 1 of 16
Manoj Kumar Vs. Abhinav Kumar
2
J U D G M E N T :
1. A Detailed Accident Report was filed by the SHO of the Police Station Vasant Vihar of the case registered vide FIR 161/12 of an accident which took place on 26.05.12 at about 0830 hrs. It resulted in the death of Chandni and her 08 months foetus.
2. Briefly the facts are that on 26.05.12 at about 0830 hrs. the claimant was going with his wife on foot. He was standing at Baba Gang Nath Marg near JNU Opposite Budh Vihar, Munirka, New Delhi. All of a sudden a car bearing no. DL 7C L 7252 came from the side of Priya Cinema being driven by respondent no.1 in a very rash and negligent manner and hit his wife. She was pregnant and was having 08 months foetus. Due to forceful impact, she fell down on the road and sustained injuries. She was taken to AIIMS Trauma Centre where she was declared brought dead. A case was registered at the police station Vasant Vihar vide FIR 161/12. She was survived by her husband. She was a housewife and had been doing stitching and sewing work. She used to earn Rs. 10,000/ p.m. Respondent no.1 was also the owner of the car and it was insured with respondent no.2.
3. The DAR was treated as claim petition U/s 166(4) of the Motor Vehicle Act vide order dated 16.07.2012.
FIR No. : 161/12, PS : Vasant Vihar Page No. 2 of 16 Manoj Kumar Vs. Abhinav Kumar 3
4. Notice of the DAR was given to the respondents.
5. Respondent no.1 in his reply stated that the accident took place on account of the fact that a boy aged 78 years suddenly crossed the road and appeared in front of the i10 car bearing no. DL 7C L 7252 and the accident took place to save the said boy. The car at that point of time was hardly driven at a speed of 2530 kmph because at that time work of widening the road was going on. He stated that his vehicle was insured with respondent no.2 vide policy no. 3001/67936441/00/000 for the period from 16.11.11 to 15.11.12. Respondent no.2 also denied the averments of the DAR. It however, admitted that the offending vehicle was insured with it vide above policy.
6. Vide order dated 24.09.12 following issues were framed :
i. Whether victim Chandni suffered fatal injuries in an accident which took place on 26.05.12 at about 8.30 AM involving car bearing no. DL 7C L 7252 by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP.
ii. Whether petitioners are entitled to compensation? If so, to what amount and against which of the respondents?
iii. Relief.
FIR No. : 161/12, PS : Vasant Vihar Page No. 3 of 16 Manoj Kumar Vs. Abhinav Kumar 4
7. Vide order dated 25.02.2013, the issue no. 1 was amended as under :
i. Whether victim Chandni suffered fatal injuries in an accident which took place on 26.05.2012 at about 8.30 AM due to rash and negligent driving involving car bearing no. DL 7C L 7252 by respondent no.1, owned by respondent no.2 and insured with respondent no.3? ...... OPP.
8. Parties to the present case were thereafter called upon to substantiate their case by leading evidence.
9. The claimant appeared in the witness box as PW1. He tendered his affidavit Ex.PW1/A and documents i.e. medical documents, death certificate/postmortem report, ID proof etc. as Ex.PW1/1 to Ex.PW1/16. Respondent no.1 examined himself as RW1. He tendered his evidence by way of affidavit Ex.RW/1. He also tendered the insurance policy no. 3001/67936441/00/000 Ex.RW1/1, copy of driving licence Ex.RW1/2 and copy of newspaper mark 'A'.
10. I have heard the arguments advanced by Ld. Counsel Ms. Kanta Chaudhary for the claimant and Sh. Ali Murtuza for the insurance company.
11. My findings on the issues are as follows :
FIR No. : 161/12, PS : Vasant Vihar Page No. 4 of 16 Manoj Kumar Vs. Abhinav Kumar 5 I S S U E N O . 1
12. It is well settled law that where petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and negligent driving. To prove rash and negligent driving in a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal is simply to quantify the compensation which is just rational and reasonable on the basis of inquiry. The proceedings under Motor Vehicles Act are not akin to the proceedings in a civil suit. Further, roving enquiry is not required to prove the rashness and negligence on the part of the driver as has been held in Kaushumma Begum and others Vs. New India Assurance Co. Ltd. 2001 ACJ 421 SC.
13. PW1 has stated that on 26.05.12 at about 0830 hrs. he was going with his wife on foot. He was standing at Baba Gang Nath Marg near JNU Opposite Budh Vihar, Munirka, New Delhi. All of a sudden a car bearing no. DL 7C L 7252 came from the side of Priya Cinema being driven by respondent no.1 in a very rash and negligent manner and hit his wife. She was pregnant and was having 08 months foetus. Due to forceful impact, she fell down on the road and sustained injuries. She was taken to AIIMS Trauma Centre where she was declared brought dead. A case was registered at the police station FIR No. : 161/12, PS : Vasant Vihar Page No. 5 of 16 Manoj Kumar Vs. Abhinav Kumar 6 Vasant Vihar vide FIR 161/12. Perusal of DAR reveals that the case was registered on the statement of the claimant wherein he had stated that on 26.05.12 at about 8.30 AM he alongwith his wife was going to Safdarjung hospital for her checkup. They were present on JNU side. In the meantime, from Priya Cinema side, a car bearing no. DL 7C L 7252 came in front of Budh Vihar, crossed the Divider came on the wrong side and hit his wife with a great force. The impact was so high that after hitting the Bonnet and the front windshield of the car, she fell on the road. She sustained injuries. Someone called at 100 no. PCR Van came and removed her to AIIMS Trauma Centre where doctor declared her dead. He stated that the accident took place due to the rash and negligent driving of the car no. DL 7C L 7252 by the respondent no.1. Perusal of postmortem report reveals the cause of death as shock due to antemortem spinal injuries, consequent to blunt force impact which could be possible as alleged in case of road traffic accident. Hon'ble High Court of Delhi in case titled as 2009 ACJ 287 National Insurance Company Limited Vs. Pushpa Rana has held that where a petitioner files the certified copy of the criminal record showing completion of investigation, issuance of chargesheet, certified copy of the FIR, all these documents are sufficient proof to come to the conclusion that the driver was negligent.
FIR No. : 161/12, PS : Vasant Vihar Page No. 6 of 16 Manoj Kumar Vs. Abhinav Kumar 7 Thus, from the testimony of PW1 coupled with the documents, it is established that the accident had occurred due to rash and negligent driving of car bearing no. DL 7C L 7252 by the respondent no.1. It resulted into death of Chandni and eight months old foetus. It has also come on record that respondent no. 1 was also the owner of the offending vehicle and it was insured with respondent no.2.
14. Issue No. 1 is accordingly decided in favour of the petitioners and against the respondents.
I S S U E N o. 2
15. It has been held in a catena of judgments that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair compensation and not a token amount. General principle in calculating such sum of compensation, should be so as to put the injured or legal heirs of a deceased in case of fatal accident, in the same position as he would have been, if accident had not taken place. The amount of compensation no doubt cannot bring back the dead but it certainly helps the LR's and dependents to live life with dignity and comfort as they were living during the lifetime of the deceased. The amount of compensation is awarded on the basis of age, the earning capacity and other liabilities of the deceased. The appropriate method of calculating compensation in fatal cases is multiplier FIR No. : 161/12, PS : Vasant Vihar Page No. 7 of 16 Manoj Kumar Vs. Abhinav Kumar 8 method. The Hon'ble Supreme Court in plethora of judgments has laid down that in India, the multiplier method is proper for calculation of compensation.
16. In order to calculate the amount of compensation, the sum is required to be considered under the various heads :
LOSS OF DEPENDENCY :
17. The deceased was a housewife.
In the case of Arun Kumar Aggarwal & Another Vs National Insurance Company & Others, 2010 ACJ 2161 (Supreme Court) it was held that :
"The contribution made by the housewife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by the wife with too love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife or the mother does not work by the clock. She is in constant attendance of the family through out the day and night, unless she is employed and she is required to attend the employer's work for particular hours. She takes care of all the requirements of husband and children including cooking of food, washing of clothes etc. She teach a small children and small provides invaluable guidance to them for their future life. A housekeeper or maid servant can do the household work such as cooking food, washing clothes and utensils, keeping the house clean etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children. It was held that the FIR No. : 161/12, PS : Vasant Vihar Page No. 8 of 16 Manoj Kumar Vs. Abhinav Kumar 9 approach to compute the compensation by relying upon the minimum wages payable to a skilled worker does not comment our approval because it is most unrealistic to compare the gratuitous services of the housewife/mother with work of a skilled worker."
The minimum wages as on the date of accident i.e. 26.05.12 for a non matriculate were Rs. 7,748/ p.m. The deceased was survived by her husband. It has been held in the case of Sarla Verma Vs. DTC 2009 (6) Scale 129 that the multiplier is to be taken on the basis of age of the husband of the deceased as she was married. The age of the husband of the deceased was 36 years at the time of accident. As per the case law (Supra) multiplier of is "15" is taken for calculating the loss of dependency. The annual income of the deceased comes to Rs. 7,748 x 12 = Rs. 92,976/. After deducting onehalf towards personal and living expenses, the net income for calculating the loss of dependency comes to Rs. 46,488/. Using multiplier of '15', the total loss of dependency comes to Rs. 46,488 x 15 = 6,97,320/ which is rounded off to Rs. 6,97,400/. I therefore, award Rs. 6,97,400/ to the claimant towards "Loss of Dependency". LOSS OF LOVE AND AFFECTION :
18. Claimant at this stage of his life has lost his wife. The love and care which he could have got from her cannot be measured in terms of money. I therefore, award a sum of Rs. 25,000/ to the claimant towards "Love and FIR No. : 161/12, PS : Vasant Vihar Page No. 9 of 16 Manoj Kumar Vs. Abhinav Kumar 10 Affection".
FUNERAL EXPENSES :
19. It was held in the case of "Rajesh & Ors. Vs. Rajbir Singh & Ors. 2013 (6) Scale 563" that the funeral expenses does not mean the fee paid in the Crematorium or fee paid for the use of space in the Cemetery. There are many other expenses in connection with the 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 expense. It will be just, fair and equitable under the head of funeral expenses in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/. Following the case law (Supra), I award Rs. 25,000/ to the claimant towards "Funeral Expenses".
LOSS OF CONSORTIUM :
20. It was held in the case "Rajesh & Ors. Vs. Rajbir Singh & Ors. 2013 (6) Scale 563" (Supra) that in legal parlance, consortium is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. The loss of companionship, love, care and protection etc, the spouse is entitled to get, FIR No. : 161/12, PS : Vasant Vihar Page No. 10 of 16 Manoj Kumar Vs. Abhinav Kumar 11 has to be compensated appropriately. It was held that it would only be just and reasonable that the Courts award at least Rs. 1,00,000/ for the loss of consortium. Following the case law (Supra), I award a sum of Rs. 1,00,000/ to the claimant i.e. husband of the deceased towards "Loss of Consortium".
LOSS OF ESTATE :
21. I award a sum of Rs. 10,000/ to the claimant towards "Loss of Estate".
22. The total compensation in favour of the claimant is calculated as under :
1) LOSS OF DEPENDENCY = Rs. 6,97,400/
2) LOSS OF LOVE AND AFFECTION = Rs. 25,000/
3) FUNERAL EXPENSES = Rs. 25,000/
4) LOSS OF ESTATE = Rs. 10,000/
5) LOSS OF CONSORTIUM = Rs. 1,00,000/ ============ TOTAL = Rs. 8,57,400/ ============ L I A B I L I T Y
23. As the offending vehicle was being driven by Abhinav Kumar, therefore, primary liability to compensate the claimant remains with that of him. Since the vehicle was owned by him, so, he is vicariously liable to compensate the claimant. It is an admitted position on record that the vehicle was insured FIR No. : 161/12, PS : Vasant Vihar Page No. 11 of 16 Manoj Kumar Vs. Abhinav Kumar 12 with ICICI Lombard General Insurance Co. Ltd., therefore, it becomes contractually liable to compensate the claimants.
In the instant case no evidence has been brought by the Insurance Company to show that there was breach of any insurance policy by Abhinav Kumar or he was not having a valid and effective Driving License. Thus, I am of the view that the Insurance Company is liable to pay compensation to the claimants for the above amount.
R E L I E F
24. In view of my findings on issues, I award a sum of Rs. 8,57,400/ (Rs. Eight Lacs Fifty Seven Thousand Four Hundred only) to the claimant as compensation with interest @ 9% per annum from the date of filing of the DAR till the date of realisation of the amount.
: RELEASE OF THE AWARDED AMOUNT : In the share of Claimant : (Husband of the deceased)
25. A sum of Rs. 8,57,400/ alongwith the proportionate interest thereon, is awarded to the claimant being husband of the deceased.
Out of this awarded amount, a sum of Rs. 5,00,000/ be deposited in the form of FDR in the name of claimant in the following phased manner :
1. Rs. 1,00,000/ for a period of 2 years.
2. Rs. 1,00,000/ for a period of 3 years.
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3. Rs. 1,00,000/ for a period of 4 years.
4. Rs. 1,00,000/ for a period of 5 years.
5. Rs. 1,00,000/ for a period of 6 years.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
26. In terms of the directions given by Hon'ble High Court in case titled " Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
27. As per orders of Hon'ble High Court in case titled " New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008" as well as in another case titled as " Union of India V/s Nanisiri" bearing M.A.C. Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants.
28. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble high Court, Insurance Company is directed to deposit the awarded amount in favour of the claimants with State Bank of India, Saket Courts Complex Branch, against account of claimant.
FIR No. : 161/12, PS : Vasant Vihar Page No. 13 of 16 Manoj Kumar Vs. Abhinav Kumar 14 within a period of 30 days from today, failing which the Insurance Company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
29. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner :
(i) The interest on the fixed deposit be paid to the claimant by Automatic Credit of interest of their saving bank account with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to claimant after due verification and the Bank shall issue photo identity Card to claimant / petitioner to facilitate identity.
(iii) No cheque book be issued to claimant without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the claimant alongwith the photocopy of the FDR's .
(v) The original fixed deposit receipts shall be handed over to claimant at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii)Half yearly statement of account be filed by the Bank in this Court. FIR No. : 161/12, PS : Vasant Vihar Page No. 14 of 16 Manoj Kumar Vs. Abhinav Kumar 15
(viii)On the request of claimant, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
(ix) Claimant shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
DIRECTIONS FOR THE INSURANCE COMPANY
30. The insurance company is directed to file the compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this tribunal within a period of 30 days from today.
31. The insurance company is directed to furnish a copy of this award alongwith the cheques of the awarded amount to the Manager of State Bank of India, Saket Court Branch, so as to facilitate the Manager of State Bank of India, Saket Court Branch to have the identification of the claimant in whose favour the award has been passed.
32. The insurance company shall intimate to the claimant about its having deposited the cheques in favor of the claimant in terms of the award, at the address of the claimant mentioned at the title of the award, so as to facilitate him to withdraw the same.
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33. Copy of this award / judgment be given to the claimant who is directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after his having received the notice of the deposit of awarded amount from the Insurance company.
34. Copy of this Award / Judgment be given to counsel for the Insurance Company for necessary compliance.
35. The case is now fixed for compliance for 10.01.2014.
Announced in the open court
on 29th Day of November, 2013 (SANJIV JAIN )
Presiding Officer : MACT
South Distt. : Saket Courts
New Delhi : 29.11.2013
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