Delhi District Court
Delhi vs Sh. Govind Singh S/O Sh. Satyawan on 1 December, 2012
IN THE COURT OF MS. REKHA RANI : JUDGE : MACT :
DELHI
MACT No. : 570/06
UNIQUE ID NO. :02404C0139112006
1 Smt Saroj Bala (mother of deceased)
R/o A179, Village & Post Office,
Naya Bans, Delhi82
.........Petitioner
Versus
1 Sh. Govind Singh S/o Sh. Satyawan
R/o VillageGubhana, PSBahadurgarh,
Distt. Jhajjar, Haryana
............ Driver
2 Sh. Sanjeev Khatri S/o Raj Singh Khatra
R/o H.No. 152, Village Tikri Khurd,
Narela, Delhi
........... Owner
3 The New India Assurance Co. Ltd.
A2/3, Lusa Tower, Azadpur, Delhi110033
......Ins. Co.
.......Respondents
MACT 570/06 Saroj Bala Vs. Govind 1/20
DATE OF INSTITUTION : 03.05.06
DATE OF RESERVING ORDER : 26.11.12
DATE OF PRONOUNCEMENT : 01.12.2012
A W A R D
1. Life has been really painful for the petitioner. She lost her husband in the prime of her youth. Her pain was aggravated when her son died in gruesome accident at the threshold of his youth. It is impossible to measure in terms of money the pain suffered by her on account of death of her only son. Since compensation is required to be paid for the loss of dependency, pain and suffering a humble attempt is being made to award compensation which as per law seems to be just and fair
2. A petition was filed U/s 140 & 166 of the Motor Vehicles Act (in short the Act) by Saroj Bala mother of deceased Sachin Bhardwaj (in short deceased) claiming an amount of Rs.12 lacs as compensation from Govind driver of the offending vehicle (in short R1), Sanjeev Khatri registered owner of the offending vehicle (in short R2) and M/s New India Assurance Co. Ltd (in short R3). pleading that On 20th April, 2006 deceased was pillion riding on MACT 570/06 Saroj Bala Vs. Govind 2/20 motorcycle no. DL9SL1747 which was hit by a tempo no. DL1LG3001 near Holumbi, Kalan Road near Railway phatak, Delhi & he died on the spot. R1 was driving the said tempo (in short the offending vehicle) "at a very high, excessive, reckless, dangerous, uncontrollable speed in a rash and negligent manner". Had R1 driven the offending vehicle with care and caution, the said accident could have been avoided.
Deceased was a student of 10th standard. He was also doing computer course from Private institute. He was about 16 years old. He had bright future. Accordingly compensation of Rs. 12 lacs with interest @ 18 p.a is prayed.
3. R1 and R2 filed joint written statement. It is stated that deceased met with accident due to his own negligence being in a hurry. It is stated that deceased hit the tempo from behind. It is denied that accident occurred due to rash and negligent driving of the Tempo.
4. R3 also filed written statement. While It is admitted that Tempo bearing no. DL1LG3001 was insured with it vide policy no. 320100/31/05/01/00009979 valid from 27.01.06 to 26.01.07; It is denied that petitioner is entitled to the compensation MACT 570/06 Saroj Bala Vs. Govind 3/20 claimed. It is stated that compensation is excessive and exorbitant.
5. My Ld. Predecessor framed following issues on 09.10.06
1. Whether on 20.04.06 near Holumbi Kalan Road, Near Railway Phatak motorcycle No. DL9SL1747 upon which deceased Sachin was riding hit by tempo no. DL1LG3001 which was driven negligently by R1 and caused death of the deceased?
2. Whether driver of the motorcycle himself was guilty of negligence?
3. Whether petitioner is entitled to compensation as prayed for?
4. Relief.
6. Petitioner examined herself as PW1, Vijay Kumar an eye witness as Ex. PW2, ASI Ranvir Singh as PW3 and thereafter, closed her evidence. Respondents did not lead any evidence. I have perused the case file. I have also seen DAR filed by SHO Police Station Narela.
7. Issue No. 1 & 2 Qua Negligence Vijay Kumar, driver of the motorcycle, deposed that on 20.04.06 he was riding on the motorcycle with his nephew and he saw that the offending vehicle had overtaken one cycle at very fast MACT 570/06 Saroj Bala Vs. Govind 4/20 speed & thereafter it hit his motorcycle. It is further stated that as a result of the collusion, both of them fell down. Sachin, the pillion rider, received head injuries and he started bleeding profusely and died on the spot. FIR was registered against R1 and after investigation the police filed the chargesheet. The complete set of documents relating to the police action, namely, the FIR, chargesheet, statement of witnesses, site plan, seizure memo, notice under section 133, mechanical inspection report, MLC and postmortem report are placed on record.
8. According the said site plan, the motorcycle and the tempo were coming from opposite direction. My Ld. Predecessor vide Award dated 02.02.07 held that there was no negligence on the part of offending vehicle. He disbelieved the testimony of Vijay Kumar that accident took place on account of negligent driving of the offending vehicle by R1. So, he converted the claim petition under section 163A of the Act.
9. The Award was challenged by R3 and Hon'ble Delhi High vide its order dt. 31.05.12 set aside the Award treating the claim petition under section 166 of the Act and ordered the Tribunal to conduct fresh enquiry. SHO PS Narela filed DAR. Notice was MACT 570/06 Saroj Bala Vs. Govind 5/20 issued to IO which was returned with the report that he had died. Learned Counsel for Petitioner stated that he did not want to examine any other witness. R3 did not lead any evidence.
10. The Act does not stipulate holding a trial for petition preferred under section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal holds an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal as held in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943.
11. In Bimla Devi and ors. Vs. Himachal Road Transport Corporation and Ors (2009) 13 SC 530, Hon'ble Supreme Court held that Tribunal has to take a holistic view of the matter and that strict proof of an accident caused by a particular vehicle in a particular manner should not be insisted. It was also observed that claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt could not have been applied.
12. In National Insurance Company Pvt. Ltd. Vs. Smt. Pushpa Rana & Ors. Decided on 20th December, 2007. Hon'ble Delhi High Court observed that documents in the nature of MACT 570/06 Saroj Bala Vs. Govind 6/20 certified copy of the criminal record of criminal case, pertaining to involvement of the offending vehicle, (ii) criminal record showing completion of investigation of police and issue of charge sheet under Section 279/304A, IPC against the driver, (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and
(iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased are sufficient to prove negligence of the driver.
13. These documents are on record and which as per Pushpa Rana (Supra) should be sufficient to bring home guilt of R1. On the touchstone of preponderance of probability.
14. Petitioner has placed on record certified copy of order of Ld. MM in the criminal matter arising out of the accident in question in which R1 was convicted for the offences punishable U/s 279, 304A IPC on the basis of plea bargaining.
Once R1 stands convicted on the basis of plea bargaining, it does not lie in the mouth of respondents to allege that accident took place on the account of negligence on the part of the motorcycle rider or the deceased Both the issues are accordingly decided in favour of the MACT 570/06 Saroj Bala Vs. Govind 7/20 petitioner and against the respondents.
15. Issue no. 3 Qua Quantum of Compensation Petitioner contended that her son was computer literate and in this era of computerisation in every sphere of life he would have easily got a job at salary of Rs. 60007000/ per month.
16. Now a question arises whether potential income of the deceased is to be taken in to account as was done in the following cases to compute loss of dependency.
17. In Ganga Devi & Ors v. New India Assurance Co. Ltd. & Ors. MAC APP 359/2008 decided on 23.11.09 which related to the death of a student (studying medicine) who was doing internship and was to be awarded the 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 High Court observed that the deceased would have ultimately joined as a doctor at a salary ranging between Rs. 16,000/ to Rs. 25,000/ per month.
18. In Ramesh Chand Joshi v. New India Assurance Company MAC APP. 212213/2006 decided on 20.01.2010 Hon'ble Delhi High Court took the potential income of a BE (Bio Technology) First year student of Delhi College of Engineering MACT 570/06 Saroj Bala Vs. Govind 8/20 (DCE) Rs 38,333/ per month.
19. In New India Assurance Co. Ltd, Appellant Vs. Bharat Singh @ Bharat Kumar @ Bharat Kumar Bilwal & Ors. MAC APP 137/2012 decided on 08th August 2012 deceased Abhilasha scored about 87% marks in 12th examination conducted by the Central Board of Secondary Education (CBSE) in the year 2008. On the basis of her good performance, she was able to get admission in Aurobindo College in Delhi University. Hon'ble Delhi High Court held that the deceased was a meritorious student and after completing her Graduation, she would have got some job as an Assistant Accountant or Accounts Clerk in any Govt. or any public sector company at a salary of Rs. 15,000/ per month. However since she was not doing any "professional course from any prestigious Institution", no addition towards the future prospects was made.
20. In Sumitra Sharma & Anr Vs. National Insurance Co. Ltd. MAC APP. 600/2010 decided on 31st May 2012 deceased Amit Sharma scored 89.3% marks in his 12th examination held by CBSE. He scored 97% marks in mathematics. He had qualified Haryana State All India Common Engineering Entrance Test MACT 570/06 Saroj Bala Vs. Govind 9/20 (CEET2005) and got admission in the Institute of Technology & Management, Faridabad under the stream of Electronics and Communication Engineering. Hon'ble Delhi High Court observed that if a qualified degree holder Engineer joins a Govt. service he would get salary of Rs. 17,940/ per month. No addition was made towards future prospects as the deceased had scored admission in a College "which was not affiliated to a prestigious University".
21. In the present case PW1 has placed on record Ex. PW1/4 which is Mark Statement of deceased issued by National Institute of Open School. The performance of deceased was average and he was absent in economic paper. PW1 has further relied upon Ex. PW1/5 which is certificate issued by DICS vide which deceased obtained training in basic concepts of computer.
22. He was only an average student and had learnt only basics of computers. Potential income of victim was taken in Ganga Devi (Supra) where deceased was to be awarded MBBS degree in a short time; in Ramesh Chand Joshi (Supra) where deceased was pursuing professional course in a prestigious Delhi College of Engineering; in Bharat Singh (Supra) where deceased was meritorious student and got admission in Aurobindo College, Delhi MACT 570/06 Saroj Bala Vs. Govind 10/20 University and in Sumitra Sharma (Supra) where deceased was a brilliant student and had qualified CEET2005 and got admission in Institution of Technology & Management, Faridabad.
23. Deceased in this case was neither meritorious student nor was pursuing any professional course from any prestigious institution. So it is not possible to guess his potential income. He sailed in the same boat as victims in the following cases.
24. In Ravinder Rai & Anr. v. Ram Niwas & Ors. In MAC APP. 290/2010 decided on 03rd January, 2012 deceased was a student of 12th standard and aged about 18 years at the time of accident. Hon'ble Delhi High Court calculated loss of dependency on minimum wages of a matriculate saying that "the deceased would have earned at least this much amount after completing her 12th standard".
25. Reference may also be made in Ramehar and Others v. Vinod Kumar and Others 2009 ACJ 452 where the deceased was about 18 years and was admittedly a brilliant child yet Hon'ble Delhi High Court calculated the compensation on minimum wages as applicable for a matriculate.
26. In Arun Kumar Vs. Nand Kishore & Ors in MAC APP MACT 570/06 Saroj Bala Vs. Govind 11/20 193/2011 decided on 29th November, 2012 deceased was a student of 11th standard at the time of the accident. Hon'ble Delhi High Court held that as there was uncertainty about the profession which deceased was to adopt compensation towards loss of earning capacity was computed on the basis of minimum wages of a Matriculate.
27. In Mohd. Kashim @ Salman V. Anil Kumar & Ors in MAC APP 1041/2011 decided on 30th November 2012 deceased was about 14 years at the time of accident. It came in evidence that he was working as book binder with M/s Malik Book Binder . Claims Tribunal disbelieved the salary certificate. In appeal Hon'ble Delhi High Court observed that Claims Tribunal rightly discarded the salary certificate and took minimum wages of an unskilled worker to award compensation towards loss of earning capacity.
28. So as held in Ravinder Rai (Supra), Rammehar and Ors. (Supra), Arun Kumar (Supra) and Mohd. Kashim @ Salman (Supra) loss of dependency in this case has to be calculated on minimum wages. As per Marks Statement Ex. PW1/4 deceased is shown absent in economics subject and result is shown as "xxxx". It is not even clear that he qualified this examination. However in view MACT 570/06 Saroj Bala Vs. Govind 12/20 of Ex. PW1/5 issued by DICS minimum wages of skilled worker can be taken which were Rs.3695/ on the date of accident
29. In Santosh Devi V. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559 Hon'ble Apex Court observed that even in the absence of any evidence as to future prospects an increase of 30% in the income has to be provided where the victim had fixed income or was a self employed person. Relevant part of the order is extracted hereunder :
"14........In our view, it will be naive to say that the wages or total emoluments/income of a person who is selfemployed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of the rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are selfemployed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed under the Central and State Governments and their MACT 570/06 Saroj Bala Vs. Govind 13/20 agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are selfemployed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of MACT 570/06 Saroj Bala Vs. Govind 14/20 essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is selfemployed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is selfemployed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."
30. Thus, petitioner would be entitled to an addition of 30% towards inflation.
31. As per Ex. PW1/6 which is registration card issued by CBSE, date of birth of deceased was 10.10.90. So he was 15 years 6 months 10 days on date of accident.
32. In Amrit Bhanu Shali & Ors Vs. NIC & Ors. Civil Appeal No. 3397 of 2012 before the Apex Court the deceased was unmarried and 26 years old at the time of accident and his salary MACT 570/06 Saroj Bala Vs. Govind 15/20 was Rs.99,000/ per annum. Claims Tribunal deducted 50% of the income and applying the multiplier of 17 held that the parents of the deceased were entitled to compensation of 8,66,000/.
Hon'ble High Court in appeal reduced the compensation to 6,68,000/ by applying the multiplier of 13 Vide its order dated April 04, 2012 Hon'ble Apex Court observed that "the selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation."
" As the age of the deceased at the time of the death was 26 years, the multiplier of 17 ought to have been applied. The Tribunal taking into consideration the age of the deceased rightly applied the multiplier of 17 but the High Court committed a serious error by not giving the benefit of multiplier of 17 and bringing it down to the multiplier of 13."
33. In view of Amrit Bhanu multiplier as per age of deceased should be adopted. So multiplier of 18 is applicable.
MACT 570/06 Saroj Bala Vs. Govind 16/20
34. As per Sarla Verma's (Supra) where the deceased was bachelor and claimant is his parents 50% is deducted as personal and living expenses.
35. Calculation Minimum Wages Rs.3695/ Addition of 30% towards inflation Rs.3695/ + 1108/ = 4803/ 50% deduction towards personal and living expenses Rs. 48032401=2402 The loss of dependency comes to Rs.5,18,832/ (Rs.
2402X12X18)
36. Regarding compensation payable on account of loss of love and affection para 9 of the judgment in ICICI Lombard General Insurance Company Ltd. V. Hari Singh & Ors. MAC APP 122/2011 is reproduced below :
"Loss of love and affection can never be measured in terms of money. Thus, uniformity has to be adopted by the Courts while granting nonpecuniary damages. The Supreme Court in Sunil Sharma V. Bachitar Singh (2011) II SCC 425 and in Baby Radhika Gupta V. Oriental Insurance Company Limited (2009) 17 SCC 627 granted Rs.25,000/ (in total to all the claimants) only MACT 570/06 Saroj Bala Vs. Govind 17/20 under the head of loss of love and affection. This, I would reduce the compensation under this head to Rs.25,000/ only."
Accordingly, compensation of Rs.25,000/ is granted under the head of loss of love and affection.
37. Compensation of Rs.10,000/ is granted under the head funeral expenses as no document is available with regard to the expenses incurred on last rites.
38. The over all compensation thus comes to Rs. 5,53,832/ .
39. Petitioner stated that she had received Rs. 3,70,000/ from R3 pursuant to order of Hon'ble High Court dated 31st May 2012 (Para 9). Therefore, after deduction of the said amount total compensation comes to Rs. 1,83,832/(Rs.5,53,832- Rs. 3,70,000/)
40. R3 is, accordingly directed to deposit the awarded amount of Rs.1,83,832/with interest at the rate of 7.5 % per annum from the date of filing of claim petition till its realisation in State Bank of India, Rohini Courts Complex, Delhi through its Branch Manager in the accounts to be opened by the petitioner, within 30 days from today.
MACT 570/06 Saroj Bala Vs. Govind 18/20
41. In view of the judgment in General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631 for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered:
42. Entire amount is given to mother of deceased as she is the only legal representative of the deceased.
43. Rs. 83,832/ be released to her out of her share. Remaining Rs. 1,00,000/ be kept in two FDRs of Rs. 50,000/each (i.e. One FDR of Rs. 50,000/ for one year, one FDR of Rs. 50,000/ for two years ).
The fixed deposit on its maturity may be renewed at the discretion of the petitioner or deposited in her saving bank account.
44. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Saving Account.
45. Petitioner shall not be having any facility of loan or advance on these FDRs. However, in case of emergent need, she may approach this court for premature withdrawal of amount.
46. No cheque book be issued to the petitioner without the MACT 570/06 Saroj Bala Vs. Govind 19/20 permission of this court.
47. The Bank shall issue Fixed Deposit Pass Book instead of the FDRs to the petitioner and the maturity amount of the FDRs be automatically credited to her Saving Bank Account at the end of the FDRs.
48. On the request of the petitioner, Bank shall transfer the Saving Account to any other branch according to her convenience.
49. Petitioner shall furnish all the relevant documents for opening of the Saving Bank Account to the Branch Manager of the said bank.
50 Copy of this order be given to parties for compliance. Copy of this order be also sent to Branch Manager of the said bank.
51. Petition is disposed of on aforesaid terms. File be consigned to record room.
ANNOUNCED IN THE OPEN JUDGE/MACT:ROHINI COURT ON 01.12.2012 DELHI MACT 570/06 Saroj Bala Vs. Govind 20/20