Delhi District Court
Sh. Ishwar Singh vs Suraj Prakash Arya on 3 September, 2014
IN THE COURT OF SHRI NIKHIL CHOPRA,
PO: MACT (SE03), SAKET COURTS, NEW DELHI
Regn. No./Case no. 102/14/13
FIR No.99/2013
Police Station: Defence Colony
Fatal Case
In the matter of:
1. Sh. Ishwar Singh, about 46 years,
S/o Late Sh. Prem Singh,
2. Sunita, aged about 41 years,
W/o Sh. Ishwar Singh,
Both R/o 65, Shera Mohalla,
Garhi, New Delhi110065.
.........Petitioners
VERSUS
1. Suraj Prakash Arya,
S/o Sh. H.R. Arya,
R/o C586, Ground Floor,
Defence Colony,
New Delhi
Permanent address :
Vill & P.S. Bhatrajkhan,
Distt. Almora, (Uttrakhand)
(Driver)
2. Sh. Santosh Kumar
S/o Sh. Gajendra Prasad,
R/o. C586, Ground Floor,
Defence Colony,
New Delhi (Owner)
Suit No.102/14/13 Ishwar Singh Vs. Suraj Prakash Page No. 1/11
3. Bajaj Allianz General
Insurance Company Ltd.
Off at : 93, Ashoka Bhawan,
6th Floor, Nehru Place,
New Delhi110019
(Insurer)
........Respondents
Date of institution/filing of DAR & claim petition : 06.08.2013 Date on which Award/Judgment was reserved : 03.09.2014 Date on which Award/Judgment was pronounced : 03.09.2014 AWARD 1 Order disposes off a detailed accident report filed in FIR No. 99/13, P.S. Defence Colony and petition U/s 166 M.V. Act, claiming compensation on account of death of Sh. Dev Baisoya, aged 19 years, in a vehicular accident dated 30.06.2013. 2 The facts, in brief, as mentioned in the petition are that on 30.06.2013 at about 2.15 PM deceased was coming on his Honda Activa Scooter bearing no. DL14SC0550 from Defence Colony Club Side, towards Ring Road, and the offending vehicle car bearing no. DL3CBY1091, being driven by respondent no.1 at a very high speed, rashly and negligently, hit the scooter of the victim from behind, resulting into victim's falling down on the road and sustaining multiple grievous injuries. It has been claimed that the victim was removed to Vimhans Hospital, Nehru Nagar, New Delhi, where he was treated, but succumbed to injuries on the same day. It is stated that an FIR No. 99/13 U/s 279/304A IPC was registered with police station Defence Colony on the complaint by one Sh. Jai Nandan Chaudhary, a security guard present at the place of occurrence. It is stated that the respondent no. 1 was driving the said car in a rash and negligent manner. Petitioners have further claimed that the deceased was 19 years of age at the time of his death and was studying at that time. It is stated that having completed his Secondary School, he Suit No.102/14/13 Ishwar Singh Vs. Suraj Prakash Page No. 2/11 had applied for admission with Institution of Electronics & Telecommunication Engineers, Noida. It is stated that he was a good sportsman and was providing tuitions to the school going children. Petitioners have, accordingly, sought compensation of Rs. 40,00,000/ together with interest. 3 Respondent no.1 and 2, in their written statement claimed that the accident did not take place due to rash or negligent driving by respondent no.1 and that the respondent no.1 has been falsely implicated in the said FIR. The vehicle is stated to be fully insured from Bajaj Alianz General Insurance Company Ltd. for the period from 15.02.2013 to 14.02.2014. It is also claimed that the deceased was himself driving the scooter in a rash and negligent manner. 4 In its reply, the Insurance Company has denied any liability, while reserving its right to statutory defences. It has also been stated that the accident, if any, had occurred solely due to negligence of the deceased. It is admitted that the vehicle bearing no. DL3CBY1091 is insured in the name of Sh. Santosh Kumar, vide policy bearing no. OG131105180100021666, valid from 15.02.2013 to 14.02.2014. 5 From the pleadings of the parties, following issues were framed on 10.10.2013:
1. Whether the petitioner received fatal injuries in the accident which took place on 30.06.2013 at about 2.15 PM involving i.e. Volks WagonR car bearing no. DL3CBY1091 due to rash and negligent driving of respondent / driver, owned b respondent / owner insured by respondent no.3 (Insurance Company)? OPP
2. To what amount of compensation the petitioner is entitled to claim and from whom?
3. Relief.
6 Petitioner No. 1Ishwar Singh examined himself as PW1 and deposed through affidavit. He stated that his son sustained fatal injuries in a road accident which took place on 13.06.2013 due to negligence of the driver of car no.
Suit No.102/14/13 Ishwar Singh Vs. Suraj Prakash Page No. 3/11DL3CBY1091. He stated that on 30.06.2013 at about 2.15 PM his son was coming from Defence Colony Club side towards Ring Road, on his Honda Activa scooter bearing no. DL14SC0550 and the offending car No. DL3CBY1091, which was being driven by respondent no.1 at a very high speed, rashly and negligently, came from behind and suddenly took a turn towards Chander Gupta Vithi Marg, thereby hitting the scooter of the victim from behind. He further deposed that as an impact the victim fell down and sustained grievous injuries and the scooter as well was damaged. He deposed that the victim was removed to Vimhans Hospital, Nehru Nagar, but he died despite treatment. He further deposed that on the complaint of Sh. Jai Nandan Chaudhary, a security guard present at the place of occurrence, lodged a complaint and an FIR No. 99/13 U/s 279/304A IPC was lodged with police station Defence Colony. He has further deposed that the accident has been caused due to rash and negligent driving by respondent no.1. He has deposed that his son was 19 years old at the time of his death, and had applied for admission with Institution of Electronics & Telecommunication Engineers, Noida Centre. He proved the copy of FIR as Ex. PW1/1; MLC and postmortem report as Ex. PW1/2; copies of registration certificate, insurance policy and driving license of respondent no. 1 as Ex. PW1/3 (collectively); mechanical inspection report as Ex. PW1/4; copy of PAN card of deceased as Ex. PW1/5; copy of voter ID Card of deceased as Ex. PW1/6; copy of Adhaar Card of deceased Ex. PW1/7; copy of ICard issued by Institution as Ex. PW1/8; copy of enrollment card of deceased as Ex. PW1/9; copy of receipt dated 13.08.2012 as Ex. PW1/10; copy of grade sheetcumcertificate of performance as Ex. PW1/11; copy of certificate of merit issued by Sports Branch, Delhi Administration as Ex. PW1/12; copy of certificate of merit issued by Delhi Administration as Ex. PW1/13 and copies of provisional certificate and character certificate as Ex. PW1/14 (collectively).
7 In his crossexamination, he admitted that he is not an eye witness to the accident and his wife also is not an eye witness. He denied that his son was driving the scooter in a rash and negligent manner. He further denied that they had wrongfully claimed rash and negligent driving on the part of respondent no.1, as they Suit No.102/14/13 Ishwar Singh Vs. Suraj Prakash Page No. 4/11 have not witnessed the accident. He admitted that his son was studying and stated that he had cleared higher secondary examination in or around year 2012. He stated that he was unmarried and not gainfully employed. He denied that his son was not holding any valid license at that time. He denied that his son was not pursuing diploma in engineering at the time of accident. It has also been denied that Ex. PW1/9 and PW1/10 are forged and fabricated documents. He stated that the age of the petitioner no.2 was 41 years at the time of accident and denied that she was 45 years of age at the time of accident.
8 I have gone through the relevant records and I have also heard Ld. Counsel for the parties. My issue wise findings are as under : Issue1 9 PW1 has categorically stated that the offending vehicle was being driven at a very high speed, rashly and negligently. Though it is true that PW1 is not an eye witness, the fact that the FIR No. 99/13, lodged on the statement of Sh. Jai Nandan Chaudhary, a security guard working at H. No. C557, Defence Colony, New Delhi, also states that the car no. DL3CBY1091 was being driven rashly and negligently and the driver of the said car turned the vehicle towards Chander Gupta Vithi Marg, thereby hitting Honda Activa scooter bearing no. DL14SC0550 from behind. 10 I have gone through the final report filed in FIR No. 99/13, wherein it has been stated that a case U/s 279/304A IPC is found to be triable against respondent no.1. Even otherwise, in view of the law laid down by Hon'ble Supreme Court, the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property, renders the petition maintainable under section 166 and 140 of the Motor Vehicle Act. No roving inquiry into rashness or Suit No.102/14/13 Ishwar Singh Vs. Suraj Prakash Page No. 5/11 negligence on the part of the driver, is to be made. In the case of Basant Kaur 1, it was observed that registration of criminal case against driver of offending vehicle is enough to record finding that the driver of the offending vehicle is responsible for causing the accident. The issue no.1 is decided accordingly, in favour of the Petitioners.
(Issue2) 11 Ld. Counsel for the petitioner has contended that the deceased was pursuing his diploma and as such he would have earned anything between 25,000/ to 40,000/ after completion of the course. He has further contended that the income of the petitioner, thus, needs to be taken as at least Rs. 40,000/ per month in order that just and fair compensation is awarded to the petitioner. Ld. Counsel for R3 on the other hand has contended that merely because the petitioner was registered with the institute of engineering, does not imply that the deceased would have become a diploma holder, or have secured a job, or would have earned. Ld. Counsel for R3 has further contended that the petitioner is a matriculate as per the certificates placed on record and cannot be assumed to be earning anything. It is the contention of the Ld. Counsel for R2 that if at all any notional income is to be assessed the same cannot be more than the minimum wages prescribed by the state. 12 Before proceeding further, the relevant facts need to be dilated upon. Ex. PW1/9 shows that the petitioner was registered with the Institution of Electronic and Tele Communication Engineers, Arun Vihar, Noida, as a student for diploma and the receipt dated 13.08.2012/ Ex. PW1/10 shows that he was charged Rs. 6,400/ towards registration fee and subject tutorials. Although there is no other document showing that the deceased was pursuing his diploma, the concern of the petitioners cannot be brushed aside in totality.
13 Record shows that the petitioner was also awarded certificate of merit in sports and Eco Club and that he was doing fairly well in his academics. Considering 1 Basant Kaur and others vs. Chattar Pal Singh and Ors.- 2003 ACJ 369 MP (DB) Suit No.102/14/13 Ishwar Singh Vs. Suraj Prakash Page No. 6/11 the fact that, he was already registered with the Institution of Electronic and Telecommunication Engineers, treating the deceased as merely a matriculate, even for the purposes of assessment of notional income, would be unjust and inappropriate. The registration with the said institute shows that the deceased had the desire and capability of pursuing further studies even though he may not be treated as a diploma holder for the purposes of assessment of compensation. To strike a balance, this tribunal is of the view that minimum wages for a matriculate cannot be taken as notional income for the purposes of assessment of compensation and some guess work cannot be ruled out. Taking a cue from the minimum wages for a graduate, at the time of accident that is Rs. 10,218/ and further considering the relevant facts and circumstances, I am of the view that the fixation of notional income of the deceased at Rs. 10,000/ per month would be suffice the purpose of assessment of just and fair compensation.
14 It is the contention of Ld. Counsel for the petitioner that the age of the deceased needs to be taken into consideration and not the age of the mother. He has also relied upon Mohd. Hasnain and Ors. Vs. Jagram Meena and Ors., wherein the Hon'ble Delhi High Court has held that the age of the deceased is to be taken into consideration while adopting the multiplier. Ld. Counsel for R3 on the other hand submits that the age of the mother is to be taken into consideration and has relied upon Royal Sundram Insurance Co. Ltd. Vs. Vimla Devi & Ors. MAC App 1192/2012 decided on 28.05.2014.
15 I have gone through the judgments cited by both the sides. It transpires from Mohd. Hasnain & Ors. Vs. Jagram Meena & Ors., that a bunch of appeals were disposed off by the Hon'ble High Court after discussing various judicial pronouncements holding the field. To quote the Hon'ble High Court in its own words : Moreover, subsequent to the introduction of Section 163A and the Second Schedule of the Act, the Apex Court in Trilok Chandra, introduced a structural change by increasing the numerical value of multiplier from '16'to'18', whereas it had been fixed at '16' as per Susamma Thomas. Specifically, there was no variation in respect of Suit No.102/14/13 Ishwar Singh Vs. Suraj Prakash Page No. 7/11 fundamental premise of 'multiplier method' as held in Susamma Thomas. In Trilok Chandra, the apex court has taken the second schedule as a guiding factor.
Significantly, the Apex Court in the case of Reshma Kumari and M. Nag Pal has followed the age of the victim as a factor for selecting the multiplier. Specifically, in the selection of multiplier for the age group up to '15' the Apex Court never considered the age of the claimants as a relevant factor. Therefore, this court finds no reason to adopt a different formula for the victim who is above '15' years of age, whereas the relevant factors have been adopted by the Apex Court such as (i) age of the deceased (ii) income of the deceased and (iii) number of dependents. The Apex Court, while formulating the relevant factors for the assessment of loss of dependency, the age of the claimants never considered as a factor. Finally, in the assessment of dependency, the courts / tribunals are computing the purchasing capacity of the deceased; not the claimants. Therefore, I am of the considered opinion that the age of the victim is the proper factor for selecting the correct multiplier. 16 As per the record placed, the date of birth of the deceased was 25.04.1994. Thus, the age of the deceased was 19 years at the time of the accident. In view of the fact that his notional income is fixed at Rs. 10,000/, the loss of income comes to Rs. 10,000/ x 12 x 18 = 21,60,000/.
17 Considering the fact that deceased was 19 years old and his income would be eventually increased, the addition of 50% needs to be taken into consideration. As such the total loss comes to Rs. 32,40,000/. Since the deceased was unmarried, a deduction of personal living expenses to the tune of 50% need to be done. As such the loss of dependency is assessed at Rs. 16,20,006.50 ps. 18 In view of the above this tribunal is not left with any ambiguity as to the selection of multiplier, to be based on the age of deceased. As such the loss of dependency needs to be worked out on the basis of the age of the deceased. 19 A valuable life of a young aspiring person has been lost in the accident. No amount of money can fill the void created in the lives of the petitioners. Considering, however, that compensation is to be awarded towards loss of love and affection, a sum of Rs. 2,00,000/ is awarded to the petitioner on this count.
Suit No.102/14/13 Ishwar Singh Vs. Suraj Prakash Page No. 8/1120 A sum of Rs. 25,000/ is awarded towards funeral expenses and Rs. 20,000/ towards loss of estate.
21 The petitioners, thus, are entitled to following compensations:
Head of compensation Amount (in Rs.)
Loss of dependency 16,20,006.50
Loss of Love and affection 2,00,000.00
Funeral expenses 25,000.00
Loss of Estate 20,000.00
Total 18,65,006.50
22 Considering the fact that respondent no. 1 and 2 are main tort feasor and
joint tort feasor, respectively, and considering the fact that the respondent no.3 is the insurer and is to indemnify the owner, the respondent no.1 to 3 are jointly and severally liable to compensate the petitioners. Respondent no.3 being insurer is directed to pay the said amount together with 9% interest from the date of filing of the DAR till date of payment.
Issue No. 3 Relief 23 In view of the above findings, a sum of Rs. 18,65,006.50 is awarded to the Petitioners, together with interest @ 9 % per annum, from the date of the filing of the petition i.e. 15.07.2013, till the date of deposit. 24 Respondent no. 3/insurance Company is directed to directly deposit the cheques with State Bank Of India, Saket Court Branch, within 30 days, failing which the Respondent no. 3 would be liable to pay interest @12% per annum for the period of delay in deposit.
25 Petitioner no. 1 Ishwar Singh and petitioner no.2 Smt. Sunita, being parents of deceased, are awarded 50% each as the award amount of Rs. 18,65,006.50, and out of the above amount, a sum of Rs.1,00,000/ each, is directed to be immediately paid to the petitioners, upon deposit. The balance, is directed to maintained in the FDRs, in the manner proved hereinafter.
Suit No.102/14/13 Ishwar Singh Vs. Suraj Prakash Page No. 9/1126 The manner in which the deposits are to be made and maintained, is reproduced in the following tabulated form: Sr. Name of the Amount Amount to be Amount to be Interest Whether payable no. Petitioner / Awarded released to the deposited /maintained in the or liable to be credited in Claimant Petitioner FDR with break up and duration the A/c of the Claimant Petitioner/Claimant on monthly basis 1 Ishwar Singh Rs.9,32,503.25 Rs.1,00,000/ Rs. 8,32,503.25 + interest amount Yes + accrued on Rs. 9,32,503.25/ i.e. Interest @ 9% the amount awarded to Petitioner accrued on the no.1 said amount Amount of Term awarded to the the fixed Petitioner no. Deposit 1 30% of the 3 years above amount 30% of the 5 years above amount 40% of the 7 years above amount 2 Sunita Rs.9,32,503.25 1,00,000/ Rs. 8,32,503.25 + interest amount Yes + accrued on Rs. 9,32,503.25/ i.e. Interest @ 9% the amount awarded to Petitioner accrued on the no.2.
said amount Amount of the Term
awarded to the fixed Deposit
Petitioner no.
2 30% of the 3 years
above amount
30% of the 5 years
above amount
40% of the 7 years
above amount
27 The Bank Account/Fixed Deposits are subject to and to be regulated by
the following conditions :
28 Interest on the fixed deposit be paid to the Petitioner(s) no. 1 and 2 /
Claimant(s) no. 1 and 2 by automatic credit of interest in their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi. 29 Half yearly statements of account to be filed by the bank , with this court. 30 Bank to issue Photo Identity card to Petitioner(s) / Claimant(s) for Suit No.102/14/13 Ishwar Singh Vs. Suraj Prakash Page No. 10/11 facilitating their identity and the withdrawal from the said account be permitted subject to due verification and submission of age proof of the minors. 31 No cheque book be issued to Petitioner(s) / Claimant(s) without permission of the Court. Original Pass book shall be given to the Petitioner(s) / Claimant(s) together with the copies of the FDRs.
32 Original Fixed Deposit Receipts to be retained by the bank in safe custody and be handed over to Petitioner(s) / Claimant(s) on expiry of the term/maturity of the Fixed Deposit.
33 No loan, advance or withdrawal to be permitted/allowed in respect of the Fixed Deposits, without the permission of the Court. 34 The Bank Shall transfer the savings account to any other branch of the State Bank of India, as per the request and convenience of the Petitioner(s) / Claimant(s).
35 Petitioner(s) / Claimant(s) to furnish all relevant documents for opening of the saving Bank Account and Fixed Deposit Receipts, with the Branch Manager, State Bank of India, Saket Courts Complex Branch.
36 Copy of this award be given to the respondents as well as to the petitioner free of cost. Copy of this award be also sent to SBI, Saket Court Complex Branch for Record and compliance.
37 List on 20.10.2014 for compliance.
Announced in open Court
Dated: 03.09.2014 (NIKHIL CHOPRA)
PO: MACT03 (SE)/SAKET COURTS :
NEW DELHI
Suit No.102/14/13 Ishwar Singh Vs. Suraj Prakash Page No. 11/11