Delhi District Court
Smt. Sunita W/O Sh. Rajbir Singh (Wife Of ... vs Sh. Ram Nivas S/O Sh. Mahender Singh on 21 May, 2011
IN THE COURT OF SHRI CHANDRA BOSE : JUDGE :
MACT : DELHI
MACT No. : 1027/07
UNIQUE ID NO. : 02404C0665492007
1.Smt. Sunita W/o Sh. Rajbir Singh (Wife of deceased)
2. Rohit Singh (Son of deceased)
3. Anurag(Son of deceased)
All R/o H. No.12 Village Bawana, Delhi110039
.........Petitioners
Versus
1. Sh. Ram Nivas S/o Sh. Mahender Singh
R/o Village & P.O. Rohad, PS Bahadur Garh, Distt. Jhajjar,
Haryana
...........Driver
2. Sh. Baljit S/o Sh.Mange Ram
R/o Village Khurd PS Bahadur Garh, Distt Jhajjar Haryana
...........Owner
3. The New Indian Assurance Co. Ltd.
Delhi Regional OfficeI
Jeevan Bharti Building,
TowerII, Level 5
124 Connaught Circus
New Delhi. ..........Insurer
.......Respondents
MACT NO. 1027/07 1 of 19
DATE OF INSTITUTION : 05.12.07
DATE OF RESERVING ORDER : 14.03.11
DATE OF PRONOUNCEMENT : 21.05.11
A W A R D
1. This claim petition filed u/s 166 & 140 of M.V. Act,
1988 by legal representatives of deceased Rajbir Singh who are his wife, and 2 Children seeking compensation to the tune of Rs. 35 lacs for his accidental death against Sh. Ram Nivas, Sh. Baljit and The New India Assurance Co. Ltd. (hereinafter to be referred as R1, R2 and R3 respectively).
2. The brief facts of the case of petitioners, as per claim petition, are that deceased Sh. Rajbir Singh, 46 years old was working as a Junior Engineer in Haryana Vidyut Prasaran Nigam, Hisar, Haryana and earning Rs. 22,000/ per month. It is further stated that on 18.11.2006 at about 09.30 PM he was coming home from his construction site at Arya Nagar at Vidyut Sadan, Hisar on his motorcyle bearing No. HR 99 G (HW) T 6108 and when he reached near Tosham Road, Near Dabra Chowk, Hisar, was hit by Tata Truck bearing No. HR 63C 4355 which was being driven at a very high speed and in rash and negligent manner and deceased was crushed to death. It is further stated that the postmortem of the deceased was MACT NO. 1027/07 2 of 19 conducted in civil hospital Hisar by the Civil Surgeon.
3. WS filed on behalf of R1 wherein it is stated that deceased had died due to his own fault of rash and negligent driving. Other facts stated in the petition have been denied.
4. WS filed on behalf of R3 wherein it is stated that accident was caused due to major negligent and carelessness on the part of the deceased. It is also stated that in case it is proved that the truck No. HR 63C 4355 was involved in any accident, answering respondent shall not be liable unless and until it is proved that driver who was driving the truck at the time of accident was holding a valid and effective license. Other facts of the petition have been denied. However, it is admitted that the tata truck bearing No. HR63C 4355 was insured Vide Policy No. 353802/31/06/01/00003893 from 03.11.06 on 02.11.06 in the name of one Baljeet.
5. On the basis of the pleadings of the parties, following issues were framed on 25.02.09
(i)Whether on 18.11.06 at 09.30 PM near Dabra Chowk Hisar, Truck No. HC63C 4355 which was being driven rashly and negligently hit motorcycle No. HR99 G (HQ) T 6108 and caused death of Rajbir Singh? OPP MACT NO. 1027/07 3 of 19
(ii)Whether the motorcycle was being driven in a negligent manner, if so, its effect? OPP
(iii)Whether petitioners are entitled to compensation, if so, to what amount and from whom? OPP
6. PW1 Smt. Sunita wife of deceased filed her affidavit and was cross examined on behalf of R3.PW2 Narender Kumar and PW3 Mahender Singh have also been examined on behalf of petitioners to prove their case.No evidence has been led on behalf of respondents.
7. I had heard final arguments on 14.03.11 on behalf of petitioners and on behalf of R3. I considered the submissions of counsels for parties and evidence on record. My findings on the issues are as under:
8. FINDINGS ON ISSUE NO. 1 :
It is submitted by Ld Counsel for petitioners that in WS filed by R1, involvement of offending vehicle has not been denied. It is further submitted that PW3 Sh. Mahender Singh is an eye witness of the case who has proved the fact that on 18.11.06, truck No. HR63C 4355 had hit the motorcyclist from behind and the said motorcyclist had died at the spot. It is further submitted that initially offending vehicle was not traced and consequently an appeal was made in MACT NO. 1027/07 4 of 19 newspaper "HISAR BHASKAR" on dt. 03.03.07 to the effect that if any person who has knowledge about the involvement of vehicle in the accident on dt. 18.11.06 at Tosham Road, he may inform at the following address . It is further submitted that in response to the said appeal, PW3 Sh. Mahender Singh had come forward and went to PS Civil Line, Hisar and disclosed the registration number of the truck involved in the accident in which deceased had died. It is further submitted that the testimony of PW3 Sh. Mahender Singh should not be rejected on the ground that he had went to PS only in response to the appeal made in the newspaper and after about three months and 13 days. It is further submitted that PW3 Sh. Mahender Singh is not interested witness and is an independent witness and, therefore, his testimony should be considered as trustworthy. It is further submitted that in WS of R1, R1 has admitted the involvement of the offending vehicle and no evidence has been produced on record to show that there is collusion between the petitioners and R1. He has relied upon the case law namely Saroj & Ors. Appellants Vs. Het Lal & Ors Respondents, (2011) SCC 388 in support of his arguments. On the other hand, Ld. Counsel for R3 submits that it is a hit and run case and truck No. HR63C 4355 has been involved in place of unknown MACT NO. 1027/07 5 of 19 vehicle. It is further submitted that PW3 Sh. Mahender Singh is a planted witness at the instance of petitioners. It is further submitted that had he been an eye witness of the case, why he had not waited at the spot for the arrival of the police while he had allegedly inform it. It is further submitted that why PW3 Sh. Mahender Singh had not informed to the police about the number of the offending vehicle on telephone when he had telephoned to the police about the accident. It is further submitted that why PW3 Sh. Mahender Singh did not go to the police station on the next date of accident or thereafter to inform the police about the accident and the number of the truck. It is further submitted that there is no explanation from PW3 Sh. Mahender Singh, alleged eye witness of the case as to why he remained silent for such a long time and did not disclose that he is an eye witness of the case and about the involvement of the truck in question to the police and why only he had gone to PS on alleged reading an appeal in newspaper Hisar Bhaskar. It is further submitted that all those unexplained facts shows that there is a collusion between the petitioners and PW3 Sh. Mahender Singh about being eye witness and involvement of the truck No. HR63C 4355. It is further submitted that later on, a story has been created on behalf of the petitioners and PW3 Sh. Mahender Singh MACT NO. 1027/07 6 of 19 and by the driver and owner of the truck No. HR63C 4355 just to receive compensation from R3. It is further submitted that in WS filed by R1, the involvement of the truck No. HR63C 4355 has not been deliberately denied on the part of R1 which shows that there is collusion between the petitioners and R1.
9. I considered the submissions of counsel for petitioners and counsel for R3 as submitted above. In case law Saroj & Ors. Appellants Vs. Het Lal & Ors Respondents, (Supra), owner had admitted his vehicle being involved in the accident but claimed that accident was occurred entirely due to fault of the deceased. It was held that admission in pleadings was itself sufficient to held that vehicle belonging to R2 was involved in accident. In the case in hand, R1 driver of the offending vehicle, in his WS, has not denied the involvement of the offending vehicle. He has stated that accident was occurred on 18.11.06 in which deceased Rajbir Singh had died due to negligent on the part of the deceased and answering respondent was not negligent in driving the truck No. HR63C4355. It shows that involvement of offending truck was not denied on behalf of R1 and therefore, the case law namely Saroj & Ors. Appellants Vs. Het Lal & Ors Respondents, (Supra), was squarely covers the facts of the MACT NO. 1027/07 7 of 19 present case and I am of the view that petitioners have proved the fact that offending truck no. HR63C4355 was involved in the accident.
10. PW3 Mahender Singh has been examined on behalf of petitioners and it is claimed that he was eye witness of the accident. He has stated that on 18.11.06 at about 9:30/9:45 pm he was going on his own motorcycle to Sector13, Market, Hissar and truck no. HR63 C4355 was going towards Hisar from Tosham side at very high speed and in a rash and negligent manner and hit the motorcyclist from behind. He has further stated that as soon as the motorcyclist coming from Sector13, reached ToshamHisar road and started moving towards Hisar, the said truck hit the motorcycle from behind as a result of which the motorcyclist Rajbir came under the truck and died on the spot. He has further stated that truck did not stop and he informed the police. He has further stated that he waited for 1 ½ hour and nobody came and he went to his house. He has also proved the fact that on reading newspaper "Hisar Bhaskar", he went to PS Civil Lines and disclosed the registration number of the said truck which caused the accident in which Rajbir was died. Certified copies of mechanical inspection of motorcycle No. HR99G(HQ)T6108, Ex. PW1/B had been filed on record. I perused it. It is found that the said motorcycle MACT NO. 1027/07 8 of 19 was badly damaged in the accident. The damages caused to the motorcycle in the accident proved the fact that it was dragged by the offending truck to some distance and this fact supported the facts stated by PW3 Mahender Singh in his chief examination. I perused the crossexamination of this witness and found that nothing has come during cross examination from which it can be said that his testimony is not trustworthy. During crossexamination, PW3 has explained as to why he had not taken the injured to the hospital. He has stated that since injured had died on the spot, he did not take him to the hospital and he remained about 1 ½ hour and since no police official had reached there, he left to purchase the articles and then went to his house. Ld. Counsel for R3 has not questioned to PW3 Mahender Singh as to why he had not gone to the police station after the date of accident till he came to know through newspaper. Had the Ld. Counsel for R3 asked in this regard. PW3 Mahender would have explained as to why he had gone to police station only after about 3 and ½ month from the date of accident to disclose about the accident and his testimony should be rejected as he is planted witness. When I considered the testimony of PW3 Mahender, it is clear that the driver of the offending truck was highly negligent in driving his truck.
MACT NO. 1027/07 9 of 19 Moreover, the said truck had hit the motorcyclist from behind. It was the duty of R1 to see that motorcycle is going ahead and should have driven his truck carefully. Certified copies of criminal record has been filed. As per record, R1 was chargesheeted by the police. Certified copy of PMR shows that the death of deceased was caused due to accidental injuries.
11. For the reasons and discussions as above, I am of the view that petitioners have proved the fact that R1 was driving truck no. HR63C4355 in a rash and negligent manner and hit the motorcycle no. HR99GT6108 from behind and as a result of which deceased Rajbir Singh had died. This issued is decided accordingly. 12. FINDINGS ON ISSUED NO. 2
No evidence has been led on behalf of respondents to show that motorcycle was being driven in a rash and negligent manner. Moreover, in view of my findings on issue no. 1, it is clear that accident was caused due to rash and negligent driving of truck No. HR63C4355.
13. FINDINGS ON ISSUE NO.3 :
There are three legal representatives of deceased as per claim petition. They being wife and two sons of deceased are entitled MACT NO. 1027/07 10 of 19 for claim of compensation.
14. Whenever death of a person takes place in an accident involving use of motor vehicle, his legal heirs and dependents become entitled to be compensated by the driver and the owner of the offending vehicle. The amount of compensation does not bring back the dead but it certainly helps the legal heirs and dependents to live life with dignity and comfort as they were living during the lifetime of the deceased. Otherwise no amount of money in the world can bring back the dead or ease the pain of separation. The amount of compensation which is awarded depends upon age, earnings and other liabilities of the deceased.
15. In the case in hand, it has been claimed that deceased Sh. Rajbir Singh was working Junior Engineer in Haryana Vidyut Prasaran Nigam, Hisar Haryana and was earning Rs. 22,000/per month and petitioners have proved the documentary proof that deceased used to earn Rs22,000/p.m. and he was a government employee. PW2 Sh. Narender Singh has been examined from the department of the deceased. He has proved the fact that deceased was working as Jr. Engineer in HVPN and his gross salary for the month of October, 2006 was Rs. 21,896/. Saral Form Ex. PW2/C shows gross salary of MACT NO. 1027/07 11 of 19 Rs. 2,47,690/. It also shows that Rs. 9300/ were deducted as tax from his annual salary. After deduction of tax from annual income of the deceased, it comes to Rs.2,38,390/ (2,47,690/ 9300) annually. Therefore, I am of the view that petitioners have proved the fact that deceased was working as Junior Engineer in Haryana Vidyut Prasaran Nigam Hisar Haryana and was getting Rs. 2,38,390/ annually.
16. It has been proved on record that deceased was permanent employee with annual increment. It has also been proved that date of birth of deceased was 30.10.60 and date of death was 18.11.06 and at the time of his death his age was about 46 years. Therefore, as per case law Smt. Sarla Verma & Ors Vs. Delhi Transport Corporation & Anr. 2009 (V) AD(136). 30% as future prospect is granted and after that annual income comes to Rs. 3,09,907/ (2,38,390/ x30%). It is further submitted that there are only three financially dependents upon the income of the deceased and 1/3rd should be deducted from his income towards his personal and living expenses. As such, the rd deduction would be 1/3 towards personal and living expenses of the deceased from the income of the deceased as per case law namely Smt. Sarla Verma & Ors Vs. Delhi Transport Corporation & Anr.
MACT NO. 1027/07 12 of 19 2009 (V) AD(136). If we deduct 1/3rd from his annual income i.e.
3,09,9071,03,302(3,09,9077x1/3), we arrive at a figure of Rs. 2,06,605/. This can be said to be loss of annual dependency of Rs. 2,06,605/
17. It is submitted by counsel for petitioners that the age of deceased was about 46 years at the time of his death. The copy of mark sheet Ex. PW1/G shows the date of birth of deceased as 30.10.1960 and date of death of deceased was 18.11.06. Therefore, his age was about 46 years on the date of accident. Therefore, I take the age of deceased on the date of his death as 46 years. Therefore, in view of ratio of case law namely Smt. Sarla Verma (Supra) the multiplier of '13' would be applicable in the present case for the purpose of calculating the loss of dependency of the petitioners. Hence, after applying multiplier of '13' to the multiplicand of Rs.2,06,605/, we arrive at a figure of Rs. 26,85,865/ towards compensation on account of dependency of the petitioners.
18. In addition to it, Petitioner no.1, being widow of deceased is entitled to be compensated for loss of consortium. Let she be paid towards loss of consortium.
Rs. 10 ,000/
Rs. 10,000/ is also
granted to petitioners towards loss of estate.
MACT NO. 1027/07 13 of 19
19. In addition to it, Petitioners are entitled to be compensated for loss of love and affection. Deceased left behind aged wife and 2 sons. They will miss him through out their lives. Nothing can ever compensate the actual loss. Only a humble attempt is made by the Tribunal to apply soothing balm over their wounds. As such Petitioners are granted Rs.3 for loss of love and affection .
0,000/
20. In addition to it, Petitioners are entitled to be compensated for funeral expenses. The second schedule has prescribed a figure of Rs. 2,000/ which is very much on the lower side. When price of all the commodities are revised from time to time and even minimum wages are being periodically increased, there is no point in sticking to towards low figure of Rs. 2,000/. Let Petitioners be paid Rs. 5,000/ funeral expenses as lot of money is required to be spent on numerous religious rites and ceremonies and also on transportation of body.
21. In view of above additions, total compensation payable to petitioners is as under :
1.Loss of dependency : 26,85,865/
2.Loss of consortium : 10,000/
3. Loss of estate : 10,000/ MACT NO. 1027/07 14 of 19
4. Loss of love & affection : 30,000/
5. Funeral expenses : 5,000/ Total : 27,40,865/
22. So far as the liability to pay the compensation is concerned, it is primary duty of R1 and R2 being driver and owner of the offending vehicle and R3, being insurer is vicariously liable for the damages suffered by the petitioners. Since, the vehicle was duly insured with R3 on the date of accident and R1 was having valid and effective driving licence, therefore, R3 is liable to pay the compensation.
23. As such, I hold that Petitioners are entitled to receive compensation of Rs.27,40,865/ (inlcuding interim award of Rs. 50,000/) to be payable by insurance company as discussed above. This issue is decided accordingly.
24. RELIEF:
In view of the aforesaid discussions, I hereby hold that petitioners are entitled to balance amount of Rs.26,90,865/(after deduction of interim award of Rs. 50,000/) to be paid by R3, MACT NO. 1027/07 15 of 19 insurance company within 60 days of today alongwith interest to be calculated @ 7.5% per annum from the date of institution of the case till its realization. This compensation alongwith proportionate interest is apportioned between the petitioners as under :
1. Petitioner no.1 : 10,90,865/
2.Petitioner no.2 : 8,00,000/
3. Petitioner no.3 : 8,00,000/
25. In view of the guidelines issued by Supreme Court in the case titled as General Manager, Kerala State Road Transport Corporation v/s Susamma Thomas & Others, 1994 (2) SC, 1631 for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation, following arrangements are hereby ordered :
26. R3 is directed to deposit the cheques of the awarded amount with proportionate interest in Union Bank of India, Sector9, Rohini Delhi through its Branch Manager in the accounts to be opened by the petitioners, within 60 days from today and in case of MACT NO. 1027/07 16 of 19 delay, insurance company shall be liable to pay interest at the rate of 12% per annum for delayed period.
27. Upon the aforesaid amount being deposited, the Union Bank of India is directed to release Rs. 2,00,000/ each of the entire awarded amount of Petitioner no.2 and P3 and 10% of petitioner no.1 along with proportionate interest by transferring the same to their Saving Bank Accounts. The remaininig amount of petitioner no. 2 and 3 be kept in fixed deposit for a period of 5 years each. The remaining amount of petitioner no. 1 be kept in FDR in her name in the following manner :
(i)Fixed deposit in respect of 20% of the amount for a period of one year.
(ii)Fixed deposit in respect of 20% of the amount for a period of two years.
(iii)Fixed deposit in respect of 20% of the amount for a period of three years.
(iv)Fixed deposit in respect of 30% of the amount for a period of four years.
28. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Saving Account of the MACT NO. 1027/07 17 of 19 petitioners.
29. The petitioner shall not be having any facility of loan or advance on these FDRs. However, in case of emergent need, they may approach this court for premature withdrawal of any amount.
30. Withdrawal from the aforesaid accounts shall be permitted to the petitioners after due verification and the Bank shall issue photo identity Card to them to facilitate identity.
31. No cheque book be issued to the claimants without the permission of this court.
32. The Bank shall issue Fixed Deposit Pass Book instead of the FDRs to the petitioners and the maturity amount of the FDRs be automatically credited to the Saving Bank Account of the beneficiaries at the end of the FDRs.
33. On the request of the petitioners, Bank shall transfer the Saving Account to any other branch according to their convenience.
34. The petitioners shall furnish all the relevant documents for opening of the Saving Bank Account to the Branch Manager, Union Bank of India, Sector9, Rohini, Delhi. No joint account be opened in their names.
35. Copy of this order be given to parties for compliance.
MACT NO. 1027/07 18 of 19 Copy of this order be also sent to Branch Manager, Union Bank of India, Sector9, Rohini, Delhi
36. Petition is disposed of on aforesaid terms. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT (CHANDRA BOSE) On 21.05.11 JUDGE/MACT/ROHINI/DELHI MACT NO. 1027/07 19 of 19