Delhi District Court
Dayaram vs . Sanjay Kumar on 24 February, 2012
Dayaram Vs. Sanjay Kumar
1
IN THE COURT OF SHRI SANJIV JAIN : PRESIDING OFFICER : MACT02
SOUTH DISTT. : SAKET COURTS : NEW DELHI.
In Suit No. : 937/10
Sh. Dayaram
S/o Bhayan Raikwar
R/o Vill. Chanderi Chaptatore, Thana
Kundila, Distt. Tikam Garh, M.P.
(Also at Jhuggi Vasant Kunj, New Delhi)
...... Petitioner
Versus
1. Mr. Sanjay Kumar
S/o Sh. Ram Krishan Shah
R/o Vill. Vishnu Tikar,
Distt. Gaawa Jhila, Girgih (Jharkhand)
Also at
Express Eng. Motors Market,
2778/36, Hamilton Road, Mori Gate, Delhi
2. Mr. N K Gupta
S/o Sh. Shiv Kumar Gupta
R/o 83, Rajdhani Nikunj,
94, I P Extension, Patparganj,
Delhi - 92.
3. Oriental Insurance Co. Ltd.
Oriental House A25/27, Asaf Ali Road,
New Delhi - 110 002
.......Respondents
Date of Institution : 22.12.2009
Suit No. : 937/10 1/22
Dayaram Vs. Sanjay Kumar
2
Date of reserving of judgment/order : 06.02.2012
Date of pronouncement : 24.02.2012
J U D G M E N T :
1. Smt. Draupadi unaware of the fact that a calamity in the form of her 'untimely death' was standing at threshold of her destiny, was coming from her workplace at DLF Mall Vasant Kunj. It proved unaffordable for her as she lost her life in the same, leaving behind her husband.
2. It was alleged that Smt. Draupadi sustained fatal injuries in an accident which took place with a Jeep bearing registration no. HR 24 F 4797 being driven in a rash and negligent manner by respondent no.1, owned by respondent no.2 and insured with respondent no. 3.
3. Subsequent thereto, the husband of the deceased Draupadi, being her legal heir, invoked the jurisdiction this Tribunal by filing the present petition under Section 166 read with Section 140 of Motor Vehicles Act seeking compensation against the above respondents.
4. Relevant facts necessary for adjudication and disposal of the present petition Suit No. : 937/10 2/22 Dayaram Vs. Sanjay Kumar 3 as emanating from the same, apart from those stated herein above are that :
(a) On 23.12.07 the deceased was working at DLF Mall, Vasant Kunj. At about 4.00 PM she was hit by a Jeep car bearing no. HR 24 F 4797 being driven by respondent no.1 in a rash and negligent manner. Due to the impact she sustained injuries. She was removed to the hospital where her MLC was prepared. She died on 25.12.07. A case vide FIR no. 850/07 U/s 279/337/304A IPC was registered at P.S. Vasant Kunj.
(b) It was stated that ِthe deceased was aged about 20 years. She had been working as a labourer and earning Rs. 4,500/ p.m. She was hale and hearty. She had to go a long way in her life.
(c) It was stated that due to untimely death of Draupadi, the husband of the deceased has been under pain and agony, since lost the affectionate company of the deceased.
(d) It is stated that petitioner be adequately compensated.
5. Notice of the petition was given to the respondents. Pursuant to the same, Suit No. : 937/10 3/22 Dayaram Vs. Sanjay Kumar 4 all the respondents appeared and filed their written statements. They denied the averments made in the petition and their liability. Respondent no.3 however, admitted that the offending jeep was insured with it vide policy no. 271702/31/2008/3659 for the period from 11.09.07 to 10.09.08 in the name of respondent no.2.
6. On the basis of pleadings of the parties, following issues were framed vide order dated 29.03.2011 :
i) Whether the deceased died of injuries received in road accident on 23.12.07 at 4.00 PM near DLF, Vasant Kunj Mall, New Delhi due to rash and negligent driving of car bearing no. HR 24 F 4797 driven by R1 and insured by R3?
ii) To what amount is petitioner entitled and from whom?
iii) Relief.
7. Parties to the present petition were thereafter called upon to substantiate their case by leading evidence.
8. Petitioner Dayaram appeared in the witness box as PW1 and filed his Suit No. : 937/10 4/22 Dayaram Vs. Sanjay Kumar 5 affidavit Ex.PW1/A wherein he reiterated the facts as averred in the petition. He stated that on 23.12.07 at about 4.00 PM his wife was coming from her workplace at DLF Mall Vasant Kunj. All of a sudden a vehicle bearing no. HR 24 F 4797 came from opposite side and hit her. She was taken to Indian Spinal Injuries Centre where she died on 25.12.07. Her postmortem was conducted. He stated that she had been working as a labourer and earning Rs. 4,500/ p.m. He tendered the copy of ration card, certificate issued by Sarpanch, death certificate, medical bills, MLC, postmortem report, FIR, seizure memo of vehicle, RC, driving license, insurance particulars and arrest memo Ex.PW1/1 to Ex.PW1/12. He proved the certified copy of criminal record, MLC, Postmortem Report and voter Icard Ex.PW2/A (Colly.).
9. No witness was examined by the Respondents.
10. I have heard the arguments advanced by Ld. Counsel Sh. Ganesh Tripathi for the petitioner, and Sh. Santosh Tiwari for respondent no.3 as well as perused the documentary evidence on record.
11. It is submitted on behalf of the petitioner that due to involvement of the vehicle driven by respondent no.1, not only deceased lost her life but the life Suit No. : 937/10 5/22 Dayaram Vs. Sanjay Kumar 6 of the petitioner has also been ruined. She was the earning member of the family serving all financial and sentimental needs of her family. From the charge sheet and other documents, it is clear that the driver was negligent and was solely responsible for the accident.
12. I have given my thoughtful consideration to the contentions and perused the record.
13. My findings on the issues are as under : I S S U E N O . 1
14. 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 Suit No. : 937/10 6/22 Dayaram Vs. Sanjay Kumar 7 the driver as has been held in Kaushumma Begum and others Vs. New India Assurance Co. Ltd. 2001 ACJ 421 SC.
15. PW1 has stated that on 23.12.07 at about 4.00 PM his wife was coming from her work place at DLF Mall, Vasant Kunj. All of a sudden a vehicle bearing no. HR 24 F 4797 came from the opposite side being driven by respondent no.1 in a rash and negligent manner and hit her. She fell down on the road and sustained injuries. She was taken to Indian Spinal Injuries Centre where she died on 25.12.07. Her postmortem was conducted at Safdarjung hospital. He also filed the certified copy of the charge sheet U/s 173 Cr.P.C. Perusal of it reveals that the case was registered on the statement of PW1 wherein he reiterated the facts as stated in his testimony. Nothing came in his crossexamination to disprove this fact. The vehicle was seized then and there on the spot. It had fresh damages on its front portion. The respondent no.1 was arrested. As per the postmortem report, the cause of death was Cranio Cerebral injuries produced by blunt force impact. The Hon'ble High Court of Delhi in a 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. Suit No. : 937/10 7/22
Dayaram Vs. Sanjay Kumar 8 Thus, from the testimony of PW1 and the other documents, it is primafacie established that Smt. Draupadi died in the road accident on 23.12.07 near DLF Vasant Kunj Mall due to rash and negligent driving of Jeep bearing no. HR 24 F 4797 by respondent no.1. It has also come on record that respondent no. 2 was the owner of the offending vehicle and it was insured with respondent no. 3.
16. Issue no.1 is accordingly, decided in favour of the petitioner and against the respondents.
I S S U E N o . 2
17. The petitioner has claimed Rs. 20,00,000/ as compensation. In a road accident a person is entitled to compensation for the pecuniary and non pecuniary damages. Let me assess the compensation which the petitioner is entitled for under different heads.
18. 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 Suit No. : 937/10 8/22 Dayaram Vs. Sanjay Kumar 9 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 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.
19. In order to calculate the amount of compensation, the sum is required to be considered under the various heads :
(a) MEDICAL EXPENSES :
20. PW1 has stated that from the spot the deceased was taken to Indian Spinal Injuries Centre, Vasant Kunj. He has produced a bill amounting to Rs. 42,202.81 raised by the hospital and Rs. 2,200/ raised by Rotary Blood Bank, perusal of which reveals that PW1 had paid Rs. 10,000/ to the hospital and Rs. 2,200/ to the Blood Bank which amount are to be reimbursed by PW1. I, therefore, award Rs. 12,200/ to the petitioner on account of medical expenses.
(b) LOSS OF DEPENDENCY : Suit No. : 937/10 9/22 Dayaram Vs. Sanjay Kumar 10
21. PW1 Daya Ram during the course of his deposition has stated that he being husband is the only legal heir of the deceased Draupadi. As per the postmortem report the deceased was aged about 20 years. PW1 has stated that the deceased was a labourer. She was hale and hearty before the accident. This fact has not been controverted by the respondents as no contrary evidence to that effect has been brought on record. No one else has challenged the claim petition filed by the petitioner, therefore, deposition of PW1 is to be believed on this aspect.
22. Although, PW1 has stated that the deceased was earning Rs. 4,500/ p.m. but he did not place any proof of income of the deceased. In the absence of any documentary evidence, regard is to be had to the minimum wages prevailing at the time of accident with respect to "unskilled person" which as per schedule was Rs. 3,516/ per month.
23. Although, there is no evidence on record with respect to future prospects, however, Hon'ble High Court of Delhi in case titled "Narender Bishal & Another V/s Sh. Ramit Singh & Ors." bearing MAC.App. No. 100708/2006 decided on 20th February 2008 had considered the law laid down by Hon'ble Supreme Court in "General Manazger Kerala Transport Road Corporation V/s. Susamma Thomas" reported as 1994 ACJ 1 (SC) Suit No. : 937/10 10/22 Dayaram Vs. Sanjay Kumar 11 as well as in Smt. Sarla Dixit & Ors. V/s Balwant Yadav & Ors. Reported as AIR 1996, SC1274" and held :
"As would be evident from catena of judgments of the Supreme Court, the future prospects have no correlation with the price index, inflation or denunciation of currency value. The future prospects would necessarily mean advancement in future career, earnings and progression in one's life. It could be considered by seeing, from which post a person began his career, what avenues or prospects he has while being in a particular avocation and what targets he/she would finally achieve at the end of his career. The promotional avenues, career progression, grant of selection grades etc. are some of the broad features for considering one's future prospects in one's career.
The minimum wage, in the very context of economy has a correlation with the growth and development of the nation's economy, postulating increase in the price index, reduction of purchasing power with the denunciation of currency value and consequent fixation of minimum wages giving some periodical increase so as to ensure sustenance and survival of the workman class. Keeping this in view, under no circumstance the revision of minimum wages can be treated on the same footing with the factor of future prospects.
For instance, minimum wages of unskilled workman in the year 2000 were Rs.2524/ under the Minimum Wages Act. The said minimum wages in the year 2007 for the same class of unskilled workman Suit No. : 937/10 11/22 Dayaram Vs. Sanjay Kumar 12 came to be Rs.3470/ under the Act. This increase is not due to any promotion of unskilled workman or any kind of advancement in his career but the same are due to increase in price index and cost of living which are the determining factors taken into consideration for increasing the wages under the Minimum Wages Act. The nature of the job of unskilled workman will not change as the same shall remain unchanged. The same principle may be true even in the case of business or trade or other such allied activities where the future prospects of the deceased can be considered on the basis of his assets, income tax return, wealth tax return, balance sheet etc. But as far as the increase in the minimum wages is concerned the same takes into consideration the price index and the inflationary trends and the same have no correlation with the future prospects of a skilled, semiskilled or an unskilled workman."
24. Thus, future prospects are also to be taken in the present case while calculating the dependency, which as per the Sarla Verma Vs. DTC 2009 (6) scale 129 is taken as 50% of the basic income as the deceased was 20 years of age at the time of accident. Adding the future prospects, the gross monthly income of the deceased comes to Rs. 3516 + 50% of 3165 = Rs. 5274/.
25. The deceased was married and survived by her husband and the claimant is Suit No. : 937/10 12/22 Dayaram Vs. Sanjay Kumar 13 the husband of the deceased. Out of the gross income and considering that widow is the legal heir of deceased, then she by no stretch of imagination could have spent more than onehalf of his earning on herself. In view thereof, monthly loss of dependency of the petitioner would come out to Rs. 5274 - 2637 [1/2 of 5274] = Rs. 2637/. Yearly loss of dependency would come to Rs. 2637 x 12 = Rs. 31,644/. It was held in the case of Sarla Verma (supra) that while calculating the dependency, the multiplier is to be applied with reference to the age of the deceased. The date of accident is 23.12.07. As per the postmortem report, the deceased was 20 years at the time of accident. Hence, a multiplier of '18' is taken for calculating the loss of dependency. Using the multiplier of '18', the total loss of dependency comes to Rs. 569592/ (18 x 31644) which is rounded off as Rs. 569600/
26. I therefore, award a sum of Rs. 5,69,600/ to the petitioner towards "Loss of Dependency".
(b) LOSS OF LOVE AND AFFECTION :
27. Petitioner at this stage of his life has lost his wife on whom he was financially and emotionally dependent. It has been held by Hon'ble High Court of Delhi in the case titled Kailash Kaur Vs. New India Insurance Company bearing M.A.C Pet. No. 318/08 decided on 24.03.2009 that compensation towards loss of love and affection should be granted at the rate of Rs. Suit No. : 937/10 13/22
Dayaram Vs. Sanjay Kumar 14 25,000/ per petitioner.
28. In view thereof, I award a sum of Rs. 25,000/ to the petitioner towards "Loss of Love and Affection".
(c) FUNERAL EXPENSES :
29. I award a sum of Rs. 10,000/ to the petitioner on account of "Funeral Expenses".
(d) LOSS TO ESTATE :
30. I award a sum of Rs. 10,000/ to the petitioner on account of "Loss to Estate".
(e) LOSS OF CONSORTIUM:
31. I award a sum of Rs. 10,000/ to the petitioner on account of "Loss of Consortium".
: L I A B I L I T Y :
32. As the offending vehicle was being driven by respondent No. 1 therefore primary liability to compensate the petitioner is that of respondent No. 1. As the offending vehicle was also owned by respondent No. 2 therefore, he becomes vicariously liable to compensate the petitioner. It is an admitted position on record that the offending vehicle was insured with respondent no.
3. Therefore, respondent no. 3 becomes contractually liable to compensate the petitioner for the above mentioned awarded amount to the extent of Suit No. : 937/10 14/22 Dayaram Vs. Sanjay Kumar 15 liability of the insured.
In the instant case no evidence has been brought by the Insurance Company to show that there was breach of any insurance policy by the Respondent No.2 or the Respondent No.1 was not having Driving License. Thus, I am of the view that Respondent No.3 is liable to pay compensation for the above awarded amount to the extent of liability to the insured.
33. For the foregoing reasons, the respondent no. 3 is directed to pay compensation to the petitioner.
34. Issue No. 3 is decided accordingly in favour of the petitioners.
R E L I E F
35. In view of my finding on issue No. 1, 2 and 3, petitioners are entitled to the following compensation :
1) MEDICAL EXPENSES = Rs. 12,200/
2) LOSS OF DEPENDENCY = Rs. 5,69,600/
3) LOSS OF LOVE AND AFFECTION = Rs. 25,000/
4) FUNERAL EXPENSES = Rs. 10,000/
5) LOSS OF ESTATE = Rs. 10,000/
6) LOSS OF CONSORTIUM = Rs. 10,000/
===========
TOTAL = Rs. 6,36,800/
Suit No. : 937/10 15/22
Dayaram Vs. Sanjay Kumar
16
Less (Interim award vide order
dated 01.03.2011) = Rs. 50,000/
===========
TOTAL = Rs. 5,86,800/
===========
36. Petitioner is thus awarded a sum of Rs. 5,86,800/ alongwith interest @ 9% per annum from the date filing of petition till realization of the amount.
37. Out of this awarded amount, a sum of Rs. 4,00,000/ be deposited in the form of FDR in the name of petitioner in the following phased manner :
(a) A sum of Rs. 1,00,000/ for a period of 2 years
(b) A sum of Rs. 1,00,000/ for a period of 3 years.
(c) A sum of Rs. 1,00,000/ for a period of 4 years.
(d) A sum of Rs. 1,00,000/ for a period of 5 years. Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
38. 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 08.06.20009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
39. As per orders of Hon'ble High Court in case titled " New India Assurance Suit No. : 937/10 16/22 Dayaram Vs. Sanjay Kumar 17 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.
40. 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 petitioner with State Bank of India, Saket Courts Complex Branch, against account of petitioner.
within a period of 30 days from today, failing which respondent no. 3 Insurance Company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
41. 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 petitioner / claimant by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
Suit No. : 937/10 17/22
(ii) Withdrawal from the aforesaid account shall be permitted to claimant / petitioner 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 / petitioner 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 / petitioner alongwith the photocopy of the FDR's .
(v) The original fixed deposit receipts shall be handed over to claimant / petitioner 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.
(viii)On the request of claimant / petitioner, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
Suit No. : 937/10 18/22
(ix) Claimant / petitioner 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 RESPONDENT NO. 3
42. The Respondents no. 3 is directed to file the compliance report of their having deposited the awarded amount with State Bank of India, Saket Court Branch in this tribunal within a period of 30 days from today.
43. The Respondents no. 3 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/ petitioner in whose favour the award has been passed.
44.The Respondent no. 3 is further directed to furnish the claim petition number and name of the parties at the back side of the cheques of the Suit No. : 937/10 19/22 Dayaram Vs. Sanjay Kumar 20 awarded amount, so that the same be not misplaced.
45. The respondent no.3 shall intimate to the claimant / petitioner about their having deposited the cheques in favor of the petitioner in terms of the award, at the address of the petitioner mentioned at the title of the award, so as to facilitate him to withdraw the same.
46. Copy of this award / judgment be given to the petitioner who is directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after their having received the notice of the deposit of awarded amount from the Insurance company.
47. Copy of this Award / Judgment be given to counsel for the Insurance Company for necessary compliance.
48. File be consigned to record room.
Announced in the open court
on 24th Day of February, 2012 (SANJIV JAIN)
Presiding Officer : MACT02
South District : Saket Courts
Suit No. : 937/10 20/22
Dayaram Vs. Sanjay Kumar
21
New Delhi : 24.02.2012
Suit No. : 937/10 21/22
Dayaram Vs. Sanjay Kumar
22
Dayaram Vs. Sanjay Kumar
Suit No. 937/10
24.02.12
Present: Ld. Counsel for the parties.
Vide separate order of even date a compensation of Rs. 5,86,800/ (Rs. Five Lakh Eighty Six Thousand Eight Hundred only) with interest @ 9% per annum from the date of filing of petition till realization of the amount is passed in favour of petitioner.
Copy of the award be given to the parties.
File be consigned to Record Room.
(SANJIV JAIN) Presiding Officer : MACT02 South District : Saket Courts New Delhi : 24.02.2012 Suit No. : 937/10 22/22