Delhi District Court
Smt. Vinita Gupta vs . Rajesh Gupta & Ors. on 19 May, 2014
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Smt. Vinita Gupta Vs. Rajesh Gupta & Ors.
IN THE COURT OF SH. DEEPAK JAGOTRA PRESIDING
OFFICER : MOTOR ACCIDENT CLAIMS TRIBUNAL01,
DWARKA COURTS, NEW DELHI
In the matter of :
MACP No. 236/12
1 Smt. Vinita Gupta
W/o Sh. Kishan Gupta
2 Sh. Kishan Gupta
S/o Sh. Nathu Ram Gupta
Both R/o E222, Shiv Vihar,
J. J. Colony, Uttam Nagar,
New Delhi110059 ................. Petitioners
Through Advocate Sh. K. K. Sharma
Ch. No. 651, Dwarka Sector10,
New Delhi75
Versus
1 Sh. Rajesh Gupta (Owner)
S/o Sh. Kishan Gupta
R/o E222, Shiv Vihar,
J. J. Colony, Uttam Nagar,
New Delhi110059
2 The New India Assurance Co. Ltd. (Insurer)
3839, Navyug Market,
Ghaziabad, Uttar Pradesh ................. Respondents
1 Date of institution: 20/10/2012
2 Date of framing of issues : 22/03/2013
3 Date of hearing of arguments : 28/04/2014
4 Date of decision : 19/05/2014
Page no. 12 of 1
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Smt. Vinita Gupta Vs. Rajesh Gupta & Ors. FATAL CASE AWARD/ JUDGMENT:
1 The present claim petition is filed on behalf of Smt. Vinita Gupta (Mother) and Sh. Kishan Gupta (Father) claiming compensation as per the provisions of Motor Vehicle Act 1988 from the respondents.
2 Facts in the concise format are that on 12/11/2007 at about 3.30 PM the deceased met with an accident due to the use and involvement of vehicle bearing no. DL4SBH5889. As a result of the accident, the deceased received fatal injuries. 3 I have heard both the sides and carefully perused the record of the case.
4 It is submitted on behalf of the claimant that petitioners have proved their case and the petitioners are entitled for compensation to the tune of Rs. 10,00,000/ along with interest. On the other hand Ld. Counsel for the respondents prays for the dismissal of the petition.
Recapitulation of the sequence of events are as follows: 5 The present petition u/s 163A MV Act has been filed on 20/10/2012. R1 was proceeded ex parte vide order dated 22/03/2013. Written statement on behalf of R2/ insurance company filed on 22/03/2013. Issues were also framed on 22/03/2013. In order Page no. 12 of 2 3 Smt. Vinita Gupta Vs. Rajesh Gupta & Ors. to prove their case the petitioners have examined PW1 Smt. Vinita Gupta and closed their evidence on 07/03/2014. The respondent no. 2 (insurance company) has not examined any witness and closed its evidence on 11/04/2014.
6 On the pleadings of the parties, following issues were
framed:
Issue No. 1
Whether Sh. Amit Kumar
Gupta sustained fatal injuries in a motor vehicle accident dtd 12/11/2007 due to use and involvement of vehicle no. DL4S BH5889 by R1? .....OPP Issue No. 2 Whether the petitioners are entitled to claim compensation, if so, what amount and from whom? ... OPP Issue No. 3 Relief.
FINDINGS ON ISSUE NO.1 7 The onus to prove the issue was on the petitioners. Considering the fact that the present petition was under Section 163 A of Motor Vehicles Act 1988, therefore petitioners were only required to establish on record that the accident had taken place due Page no. 12 of 3 4 Smt. Vinita Gupta Vs. Rajesh Gupta & Ors. to ''involvement'' of the offending vehicle / "use" of vehicle bearing Registration No. DL4S BH5889 as the aspect of ''negligence'' is not required to be proved.
8 In order to prove the case PW1 has stated that on 12/11/2007 at about 3.30 PM, the deceased Amit Gupta was returning from the function on his motorcycle bearing no. DL4SBH5889 (Pulsar) alongwith Ms. Sunila Bahuguna D/o Sh. Naresh Bahuguna as a pillion rider. She further stated that Sh. Amit Gupta when reached at Palam Airport before underpass, he loses his balance and struck against pavement of the road due to which accident happened. She has proved the attested copy of criminal record i.e. charge sheet Ex. PW1/4, FIR Ex. PW1/5, site plan Ex. PW1/6, mechanical inspection report Ex. PW1/7, MLC Ex. PW1/8 and postmortem report Ex. PW1/9. The criminal record corroborates and supports the case of the petitioners.
9 From the above is is clear that the accident had happened because of use of motorcycle bearing no. DL4S BH5889. She has also proved the criminal record of the case which also supports the case of the petition.
10 As far as negligence of Amit Gupta is concerned in National Insurance Company Ltd. Vs. Sinitha reported in 2012 (1) TAC 234 (SC) wherein the Apex Court has been pleased to observe Page no. 12 of 4 5 Smt. Vinita Gupta Vs. Rajesh Gupta & Ors. as under:
(i) That in cases under 163 A the insurance company has to prove the negligence by way of cogent evidence in order to defeat the claim, meaning thereby inverse onus has been placed on the insurance company to establish negligence, wrongful act or default committed by the victim.
(ii) The insurance company has also to prove that the deceased was not third party and has to establish the relationship between the deceased and owner of the motorcycle which is involved in the accident.
11 Applying the above said tests in the present case the insurance company has not examined even a single witness to show if the accident had happened due to the negligence of the deceased. In the FIR and in the statement of PW1 name of Sunila Bahuguna has come who was sitting as a pillion rider despite that she has not been examined by the insurance company to prove their case. In the absence of any witness having been examined it cannot be said that the insurance company has discharged the onus placed upon them. The insurance company cannot take shelter on the statement of PW1 alone who had stated that the deceased lost his balance especially when she was not present at the spot. The best evidence was the pillion rider who was travelling with the deceased at the time of Page no. 12 of 5 6 Smt. Vinita Gupta Vs. Rajesh Gupta & Ors. accident. In such a situation it is not possible to conclude that the deceased was negligent. Coming on the second limb again the insurance company has not brought any evidence in order to show relationship between the victim and the owner of motorcycle. It is also not the case of insurance company that the motorcycle was owned by the deceased himself. Therefore, neither the relationship has been established nor the capacity in which the deceased was riding the vehicle has been brought out. Therefore, applying both the tests the insurance company has miserably failed to discharge the onus rests upon them.
12 It is a settled law that claimants need not to prove their case beyond reasonable doubt. The matter has to be seen on the premise of preponderance of probabilities. Therefore, keeping in view the totality of facts & circumstances of the matter, this issue is decided in favour of the petitioners and against the respondents.
FINDING ON ISSUE NO.2 13 This brings us to fixation of quantum of compensation which may be awarded in favour of the petitioners and against the respondents who are jointly or severely liable to make good the payment. Since the vehicle was insured with respondent no.3, therefore, it is primarily responsible to make the payment which may be awarded in the later part of the judgment.
Page no. 12 of 6 7 Smt. Vinita Gupta Vs. Rajesh Gupta & Ors.
INCOME & PROFESSION 14 In order to fix the quantum of compensation, the income of the deceased shall have to be assessed first which is also called Multiplicand.
15 PW1 in her statement has not proved any documentary evidence regarding the salary of the deceased. Moreover, in her cross examination she has stated that she is not aware if his salary was RS. 3,600/ per month. She has further stated that her son used to attend his working on call.
16 Since this is a case of 163 A, the second schedule shall be strictly followed in fixing the quantum of compensation. It has to be borne in mind that the petitioners have filed the present claim petition by invoking the provisions of Section 163A of the Act, therefore, the IInd schedule of the Motor vehicle Act 1988 inserted in the statue alongwith section 163 MV Act restricts Rs.40,000/ as maximum limit of annual income. Therefore, notional income of Rs. 40,000/ per annum shall be taken for the determination under the heads of loss of dependency as per the structured formula of IInd Schedule of the MV Act.
AGE 17 As per driving licence of the deceased which is placed on record where his date of birth is mentioned as 09/06/1984 Page no. 12 of 7 8 Smt. Vinita Gupta Vs. Rajesh Gupta & Ors. Therefore, he was 23 years of age, on the date of accident.
MULTIPLIER 18 Keeping in view the age of deceased which was 23 years at the time of accident, therefore, multiplier of '17' is taken.
NUMBER OF DEPENDENTS 19 The deceased was unmarried at the time of accident and had left behind his parents. 1/3rd deductions have to be made towards personal living expenses in accordance with the second schedule.
LOSS OF DEPENDENCY 20 Now the annual contribution to the family when multiplied by a multiplier shall give us the loss of dependency to the entire family.
a) Annual income of the deceased Rs. 40,000/
b) 1/3rd deductions on personal living
expenses Rs. 13,333/
Rs. 26,667/
21 The break up of compensation that has been awarded in
favour of the petitioners have been tabulated as below: Page no. 12 of 8 9 Smt. Vinita Gupta Vs. Rajesh Gupta & Ors.
S.No. HEAD AMOUNT
1. Loss of dependency (Rs.26,667 / X17) Rs. 4,53,339/
2. For funeral expenses Rs. 2,000/
3. Loss of estate Rs. 2,500/
TOTAL Rs. 4,57,839/
INTEREST
22 There is no material on record to withhold the interest
and as such, the petitioners are awarded interest @ Rs. 7.5% per annum from the date of filing of petition i.e. 20/10/2012 till realization.
APPORTIONMENT 23 As far as mother of the deceased is concerned she shall have more amount than father of the deceased.
LIABILITY 24 No evidence has been led on behalf respondents. Admittedly, the offending vehicle was being owned by R1 and the same was insured with R2. R2 is the principal tort feasor and R1 is vicariously liable. Both the respondents are held jointly and severally liable to pay the awarded amount. Since the offending vehicle was insured at the time of accident with R2, therefore, it shall pay the awarded amount.
25 In view of the above discussions, issue no. 2 is decided Page no. 12 of 9 10 Smt. Vinita Gupta Vs. Rajesh Gupta & Ors. in favour of the petitioners and against the respondents.
RELIEF 26 In view of the foregoing reasons and discussions, the petitioners are awarded the total amount of Rs. 4,57,839/ (Rupees Four Lacs, Fifty Seven Thousand, Eight Hundred and Thirty Nine Only) with interests.
27 The remaining awarded amount be deposited by R2 with State Bank of India, Dwarka Court Complex Branch, Sector 10, Dwarka, New Delhi within 30 days from today in the respective names of the petitioners either directly or through RTGS or by NEFT mode (IFSC Code SBIN0011566) under intimation with proof of notice to the claimants & their counsel to the Nazir of this Court. Bank Manager of State Bank of India, Dwarka Court Complex, Sector10, New Delhi is directed to release and keep some amount of the petitioners in their respective accounts as shown in the following manner: S. Name Status Total Release FDR Period No Entitlement Amount Amount of FDR amount 1 Vinita Mother Rs. Rs. Rs. One Gupta 2,57,839/ 1,57,839/ 1,00,000/ year 2 Kishan Father Rs. Rs. Rs. One Gupta 2,00,000/ 1,00,000/ 1,00,000/ year Page no. 12 of 10 11 Smt. Vinita Gupta Vs. Rajesh Gupta & Ors. 28 The beneficiaries shall furnish all the relevant documents for opening of the respective saving bank accounts. 29 The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the respective Savings Accounts of the beneficiaries.
30 Withdrawal from the aforesaid account shall be permitted to the beneficiaries after due verification and the Bank shall issue photo Identity Cards to the beneficiaries to facilitate identities.
31 No cheque books shall be issued to the beneficiaries without their permission of this Court. 32 The original fixed deposit receipts shall be retained by the Bank in the safe custody. However, the original Pass Book shall be given to the beneficiaries along with the photocopy of the FDRs. Upon the expiry of the period of each FDR, the Bank shall automatically credit the maturity amount in the Savings Accounts of the beneficiaries.
33 No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the prior permission of this court. 34 On the request of the beneficiaries, Bank shall transfer the saving accounts to any other branch according to their convenience.
Page no. 12 of 11 12 Smt. Vinita Gupta Vs. Rajesh Gupta & Ors. 35 R2 shall inform the petitioners as well as their counsel through registered post that the cheques of the awarded amount are being deposited so as to facilitate the petitioners to know about their deposits in their accounts.
36 Copy of the award be supplied to both the parties at free of cost. Copy of this award be sent to the Nodal Officer of the Bank alongwith the Court stamped, copy of the photographs and signatures of the claimants.
37 Thus, the petition has been disposed of accordingly. 38 File be consigned to Record Room.
ANNOUNCED IN OPEN COURT
DATED: 19/05/2014
(1+1) (DEEPAK JAGOTRA)
PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI.
ALL PAGES SIGNED
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