Delhi District Court
) Smt. Uma Devi Pandey W/O Shri Nagendra ... vs Shri Beer Pal Singh S/O Shri Karia Singh on 5 March, 2012
IN THE COURT OF SH PREM KUMAR BARTHWAL,
PO:MACT(SE01) : SAKET COURTS : NEW DELHI
Suit No: 434/10
Unique Case ID: 02406C0369162010
1) Smt. Uma Devi Pandey W/o Shri Nagendra Kumar Pandey
2) Sh Nagendra Kumar Pandey S/o Sh Shiv Narayan Pandey,
Both R/o A52, BlockA, Ali Vihar, Delhi.
............PETITIONERS
VERSUS
1. Shri Beer Pal Singh S/o Shri Karia Singh,
R/o Jawara Moth, Mathura, Uttar Pradesh.
2. Shri Vinod Kumar S/o Shri Shankar Lal,
R/o House No. 2050/15, Street No. 56, IInd Floor,
66, Molarband Road Extension, Badarpur, New Delhi.
Also at : House No. 422, Gali No. 10, Sehatpur,
Faridabad, Haryana.
3. M/s Reliance General Insurance Company Ltd.,
Reliance Centre, 19, Walchand Hirachand Marg,
Ballard Estate, Mumbai and also at : 60, Okhla Industrial
Estate, Phase3, New Delhi110 020.
.........RESPONDENTS
Suit No. 434/10 Page 1 of 14
Date of filing of claim petition: 09.11.2010 Date on which Award/Judgment was reserved: 05.03.2012 Date on which Award/Judgment was pronounced: 05.03.2012 AWARD:
1. This JudgmentcumAward shall decide the petition under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred as Act) filed by petitioners for grant of compensation of Rs.25,00,000/ from the respondents for the fatal injuries suffered by their son, Ravi Kumar Pandey in a road vehicular accident which took place on 12.03.2010 at Ali Mod Red Light, Mathura Road, New Delhi involving vehicle bearing no HR38N2338 driven by respondent no 1, Shri Beer Pal Singh son of Shri Karia Singh. A Detailed Accident Report (DAR) has also been filed by the police in respect of this accident (FIR No. 77/10, PS Sarita Vihar) which was clubbed with the present claim petition vide proceedings dated 09.11.2010.
2. The respondent no. 1, 2 and 3 are respectively the driver, owner and Insurer of the offending vehicle. The respondent nos. 1 and 2 have filed their written statements denying the claim of the Suit No. 434/10 Page 2 of 14 petitioners. However, during the course of the proceedings, respondent nos. 1 and 2 have stopped appearing and they were, therefore, proceeded exparte vide proceedings dated 25.07.2011.
The respondent no 3/ Insurance company has also filed its written statement through its counsel denying the claim of the petitioners but admitting the fact that the vehicle bearing no. HR38N2338 was insured with it on the date of accident.
3. From the pleadings of the parties following issues were framed for consideration on 23.03.2011:
1. Whether the deceased suffered fatal injuries in a road vehicular accident on 12.03.2010 due to rash and negligent driving of respondent no 1 involving vehicle bearing registration no HR38 N2338?
2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3. Relief
4. The petitioners in support of their case have got examined four witnesses namely Shri Nagendra Kumar Pandey, father of the Suit No. 434/10 Page 3 of 14 deceased, has been got examined as PW1; Shri Dinesh Kumar, Record Clerk, AIIMS, has been got examined as PW2; Shri Prakash Singh Mehra has been got examined as PW3 and Shri Shailender Kumar Singh, Executive (HR), M/s Rahul Cargo Pvt. Ltd, has been got examined as PW4. The Ld counsel for the petitioners has also tendered in evidence the certified copy of the Chargesheet/ Final Report U/s 173 Cr.P.C filed by the police in respect of this accident (FIR No. 77/10, PS Sarita Vihar) against the R1/ driver of the offending vehicle for his trial of offences punishable U/s 279/304A IPC and has closed petitioner's evidence vide his statement recorded on 25.01.2012. The respondents have not adduced any evidence in their defence.
5. I have heard the Ld counsels for the parties and perused the depositions of the witnesses filed on record and given my thoughts to the matter. My findings to the issues are as under : ISSUE NO. 1
6. Since the present petition is under Section 166 of M V Act, it was the bounden duty of the petitioners to prove that the respondent No. 1 was rash and negligent in driving the vehicle at the time of accident. In order to prove this issue, the learned counsel for the Suit No. 434/10 Page 4 of 14 petitioners has relied upon the statement of PW1, Shri Nagendra Kumar Pandey, who is the father of the deceased and he has deposed that on 12.03.2010, the deceased was going from Badarpur, New Delhi to his house on Motorcycle bearing registration no. DL9SX4579 and when the deceased had reached at Aali Mod Red Light on Mathura Road, New Delhi, the offending vehicle bearing registration no. HR38N2338 hit deceased's motorcycle from behind. This witness has further averred that the at the time of accident the offending vehicle was being driven at a very fast speed and in a rash and negligent manner. PW1, Shri Nagendra Kumar was crossexamined by the learned counsel for the R3/Insurance company but nothing beneficial to the respondents have emerged nor any doubt to disbelieve his version regarding the manner in which the accident had taken place have emerged from the cross examination of the said witness. The statement of PW1, Shri Nagendra Kumar also stands corroborated by the certified copy of the Final Report U/s 173 Cr.P.C, Ex.C1 (Colly) filed by the police in respect of this accident (FIR No. 77/10, PS Sarita Vihar) against the R1/ driver of the offending vehicle for his trial of offences punishable U/s 279/304A IPC. The certified copies of FIR, Site Plan, Seizure Memo of the Suit No. 434/10 Page 5 of 14 offending vehicle, Seizure Memo of the permit of the offending vehicle and Arrest Memo of R1/driver of the offending vehicle have also been filed on record by the petitioners. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court in case titled "Basant Kaur & Ors. Vs. Chattar Pal Singh & Ors" [2003 ACJ 369 M.P. (DB)] wherein it has been held that registration of a criminal case against the driver of the offending vehicle is enough to record the finding that the driver of offending vehicle is responsible for causing the accident. Further, the Hon'ble High Court of Delhi has held in case titled "National Insurance Company Limited Vs. Pushpa Rana" [ACJ 287] that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under Section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. A roving inquiry is not required to establish the rashness and negligence on the part of the driver as was held in case titled "Kaushnumma Begum and others v/s New Suit No. 434/10 Page 6 of 14 India Assurance Company Limited" [2001 ACJ 421 SC] & 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 injuries or death to a human being or damage to property would make the petition maintainable. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
7. In view of the above discussions and particularly in view of no controverting evidence on behalf of R1/ driver of the offending vehicle, it stands proved on record that the deceased, Sh Ravi Kumar Pandey had sustained fatal injuries due to rash and negligent driving of respondent No. 1 while driving the offending vehicle. Issue no. 1 is, therefore, decided in favour of the petitioners and against the respondents.
Suit No. 434/10 Page 7 of 14 ISSUE No. 2 (COMPENSATION):
8. The petitioners have claimed that their deceased son, Ravi Kumar Pandey was getting monthly salary of Rs.10,000/ from M/s Rahul Cargo Private Ltd. at the time of his fatal accident. PW4, Shri Shailender Kumar Singh, Executive (HR), M/s Rahul Cargo Pvt. Ltd has proved the appointment letter, Ex.PW4/B and copy of promotion letter dated 26.02.2010, Ex.PW4/C issued to the deceased. The said witness has also deposed that the deceased, Shri Ravi Kumar Pandey was working with M/s Rahul Cargo Pvt Ltd from 05.11.2009 till his fatal accident and was promoted from Assistant Executive (operations) to Executive (operations) w.e.f. 01.03.2010 and the deceased was getting Rs.3,391/ as Basic Pay, Rs.2,543/ as HRA, Rs.848/ as Child Education Allowance (CEA), Rs.848 as CCA and Rs.848/ as conveyance per month. During his crossexamination PW4, sh Shailender Kumar Singh had explained that their company was givinig Child Education Allowance (CEA) to all the employees irrespective to their marital status. The Ld counsel for the Insurance company has rightly contended that the reimbursements of personal expenses i.e. Suit No. 434/10 Page 8 of 14 conveyance allowance, of the deceased cannot be considered for computation of loss of income/ dependency. Accordingly, the income of the deceased is taken to be [Rs.3,391/ (Basic Pay) + Rs.2,543/ (HRA) + Rs.848/ (CEA) + Rs.848 (CCA)] = Rs.7,630/ for the purpose of assessment of loss of dependency. As per the Secondary School Certificate, ExPW1/7, the date of birth of the deceased was 23.10.1985. Hence, the deceased was about 24 years old at the time of accident (12.03.2010). The deceased being a regular employee would have earned more during his lifetime and in fact he was also keen on pursuing his education and in these circumstances, I find considerable force in the submissions of the Ld counsel for the petitioners that the petitioners are also entitled for loss of future prospects. As the deceased was aged less then 40 years hence, on the basis of the judgment of the Hon'ble Supreme Court of India in "Sarla Verma Vs Delhi Transport Corporation" [2009 (6) Scale 129], the future prospects are to be considered as 50% of the said salary. Thus, the monthly income of the deceased for the purpose of assessment of loss of dependency is taken to be Rs. 7,630/ + Rs. 3,815/ i.e. Rs.11,445/. It can very well be presumed in terms of the judgment of the Hon'ble Suit No. 434/10 Page 9 of 14 Supreme Court of India in case titled "Sarla Verma Vs Delhi Transport Corporation" [2009 (6) Scale 129] that the deceased might have been spending onehalf (1/2) of Rs. 11,445/ on his personal expenses as the deceased was unmarried and had left behind his parents who are the petitioners. Therefore, after deducting onehalf (1/2) towards personal expenses, the loss of dependency per month comes out to be (Rs. 11,445/) minus (Rs. 5,722.50/)= Rs.5,722.50/ which is rounded off to Rs. 5,800/. As per the Election ICard, ExPW1/5, the mother of the deceased was 44 year old as on 01.01.2008. Hence, at the time of accident (12.03.2010) she was about 46 year old for which the appropriate multiplier applicable for the age group of 4650 is 13, as mentioned in Sarla Verma's judgment (Supra). Thus, the total loss of dependency comes out to (Rs. 5,800/ X 12 X 13)= Rs. 9,04,800/. The petitioners have claimed that an amount of Rs. 1,20,000/ was paid towards medical treatment of the deceased prior to his succumbing to fatal injuries on 13.03.2010. In this regard, the petitioners have filed medical bills, ExPW1/8(Colly) issued from Indraprastha Apollo Hospital and have placed reliance upon the statement of PW3, Sh Prakash Singh Mehra, Supervisor (Billing Section), Indraprastha Apollo Hospital, Suit No. 434/10 Page 10 of 14 Sarita Vihar, New Delhi, who has stated that an amount of Rs. 1,20,000/ was charged for the hospitalization of the deceased, Sh Ravi Kumar Pandey for his treatment prior to his death and he also proved the medical bills, ExPW1/8(Colly). Accordingly, I hereby award a sum of Rs. 1,20,000/ to the petitioners as reimbursement towards the medical expenses incurred on the deceased prior to his succumbing to fatal injuries. I also award Rs. 10,000/ towards funeral charges, Rs.50,000/ towards love and affection and Rs. 10,000/ towards loss of estate. Therefore, in total, I hereby award a sum of Rs.10,94,800/ (Rupees Ten Lac Ninety Four Thousand and Eight Hundred Only) in favour of the petitioners and against the respondents.
RELIEF:
9. I award Rs.10,94,800/ (Rupees Ten Lac Ninety Four Thousand and Eight Hundred Only) as compensation with interest at the rate of 7.5% per annum from the date of filing the petition i.e., 09.11.2010 till the notice under Order 21 Rule 1 CPC is given by the respondents, in favour of the petitioners and against the respondents on account of their liability being joint and several. Out of the awarded amount, both the petitioners shall have equal share along with Suit No. 434/10 Page 11 of 14 proportionate interest. Acting on the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC 176 & in order to avoid the money being frittered away, 50% share of both the petitioners shall be kept in FDRs in a nationalized bank hereinafter named for a period of 03 years. No loan or advance shall be allowed against the said FDRs. However, the petitioners shall be at liberty to withdraw the interest monthly/quarterly.
APPORTIONMENT OF LIABILITY:
10. The respondent No. 3, being the insurer of the offending vehicle at the time of accident, is jointly and severally liable with other respondents. Accordingly, respondent No. 3 i.e. M/s Reliance General Insurance Company Ltd. is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
11. In terms of the directions passed by the Hon'ble High Court of Delhi in its latest judgment titled as "Amod Kumar Ray & Ors Vs Raj Kumar Chauhan & Ors" {CM(M) 649/2011 decided on 25.05.2011}, the Insurance company is directed to deposit the award Suit No. 434/10 Page 12 of 14 amount in the State Bank of India, District Courts Saket, New Delhi in the name of the petitioners in terms of the award and shall file the compliance report. It is made clear that at the time of the deposit of the award amount with the bank, the Insurance company shall specifically mention the suit no. of the case, title of the case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file the attested copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank.
12. The copy of this award be given to the respondents as well as to the petitioners free of cost. The petitioners shall approach the State Bank of India, District Court Saket, New Delhi for opening the account.
13. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioners. The amount which is ordered to be kept in the FDRs shall be not released until the FDRs are matured.
Suit No. 434/10 Page 13 of 14
14. Put up for compliance to be filed by the Insurance company on 01.05.2012. The petition stands allowed and disposed off accordingly. The inquiry file be consigned to record room after completion of necessary formalities.
Announced in the open court (PREM KUMAR BARTHWAL)
On 05.03.2012 POMACT, SE01, SAKET COURTS
NEW DELHI/05.03.2012
Suit No. 434/10 Page 14 of 14