Delhi District Court
Dr.Vidur Kumar Jain vs Sh.Balwan on 30 November, 2015
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1 (CENTRAL), DELHI.
Suit No.617/11
Unique Case Identification No.02401C-0439642011
1. Dr.Vidur Kumar Jain
S/o Late Arhant Lal Syngol (Father)
2. Smt. Rekha Jain
W/o Dr.Vidur Kumar Jain (Mother)
3. Sahil Jain
S/o Dr.Vidur Kumar Jain (Brother)
4. Smt.Anjana Syngol
W/o Late Arhant Lal Syngol (Grandmother)
ALL R/o
H. No. A-2/14, Main Pankha Road,
Janak Puri, New Delhi-58
........PETITIONERS
Versus
1. Sh.Balwan, S/o Sh.Sukhiram,
R/o VPO Kharhar, Tehsil & PS Hansi
Distt. Hissar, Harayana (Driver)
2. Sh.Satbir Singh, S/o Sh.Kapur Singh,
R/o H.No.1241-B, Ward No.1
Dayanand Rishi Nagar (Vihar),
Near Bus Stand, Hissar, Haryaya-126001 (Owner)
3. Reliance General Insurance Company Ltd.
Registered Office:19, Reliance Centre,
Walchand Harichand Marg,
Ballard Estate, Mumbai-400 001 (Insurer)
Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 1 of 24
.......RESPONDENTS
Date of filing of claim petition : 12.07.2011
Arguments heard on : 30.11.2015
Award passed on : 30.11.2015
JUDGEMENT
1.Present claim petition has been preferred by the petitioners under Section 166 and 140 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation of a sum of Rs. 5,01,00,000/- (Rupees Five Crores One Lakh Only) in respect of the accidental death of Dr. Sakil Jain (deceased) aged about 22 years in a motor vehicular accident.
In brief, FIR No.491/2010 dated 22.12.2010 U/s 279/337/304A IPC was registered at PS Sampla, Distt. Rohtak, Haryana on complaint of one Sugandha, who was student of Dental college, PGIMS, Rohtak, Haryana. She alleged that on 22.12.2010, she along with Dr.Sakil Jain were travelling from Delhi to Rohtak in Skoda Car bearing registration No. DL 4 CAV 4282. The car was driven by deceased Dr.Sakil Jain in a correct manner at a reasonable speed. At about 4:00AM near Chulana Mode a truck was driven ahead of the car in a rash and negligent manner at a high speed. The truck did not give way despite blowing of horn. When the car was in the process of overtaking the truck, the truck driver suddenly applied the brakes and Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 2 of 24 consequently the car rammed into the truck from behind. The driver of truck no.HR 61 4176 fled from the spot. The accident was further stated to have been caused due to rash and negligent driving of Respondent No.1, causing injuries to Sugandha and fatal injuries to Dr.Sakil Jain, who was declared brought dead at Rohtak Medical College.
It is further the case of petitioners that the deceased was undergoing his internship at Rohtak Medical College, Rohtak, Haryana after completing his MBBS.
2. Respondent No.1 & 2 (i.e. driver and owner of the offending vehicle) in the Written Statement submitted that the petition is bad for non-joinder of Insurance Company of Skoda car in which the deceased was travelling. Further the accident was stated to have been caused due to sole negligence of deceased himself as he hit the vehicle from behind. The claim was further stated to be excessive and exaggerated. It was further submitted that the vehicle of the answering respondents was insured with Respondent No.3 for the relevant period.
In the written statement filed on behalf of Respondent No.3 Reliance General Insurance Company Ltd., it was submitted that the respondent shall not be liable to pay compensation in case the driver and owner had violated the terms and conditions of Insurance Policy. The petition was further stated to bad for non-joinder of owner of Skoda car no DL 4 CAV 4282. It was further submitted that the claim was excessive and Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 3 of 24 exaggerated. However, it was admitted that the vehicle no.HR 61 4176 (Truck) was insured for the period 19.10.2010 to 18.10.2011 which covers the date of accident.
3. On the pleadings of the parties, following issues were framed for consideration by ld. Predecessor vide order dated 02.01.2014:
1. Whether the deceased Dr.Sakil Jain had died due to injuries sustained by him in an accident which took place on 22.12.2010 because of rash and negligent driving of vehicle bearing registration No.HR 61 4176 by Respondent No.1?
2. Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
3. Relief.
4. In support of the claim petition, petitioners led evidence of PW1 Smt. Rekha Jain (mother of deceased Dr.Sakil Jain).
PW1 Rekha Jain testified on the lines of the claim petition. She further testified that deceased Sakil Jain was doctor by profession and at the time of accident was doing his internship at Rohtak Medical College. She further proved the copy of FIR Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 4 of 24 Ex.PW1/1, copies of mechanical inspection report of both the vehicles Ex.PW1/2 and Ex.PW1/3, copy of application by IO for conducting postmortem and postmortem report Ex.PW1/4, report prepared by the Investigating Officer Ex.PW1/5, statement of witnesses recorded by the IO Ex.PW1/6, copy of driving licence of driver Ex.PW1/7, affidavit of Sh.Satbir given before the IO Ex.PW1/8, copy of permit of the vehicle Ex.PW1/9, copy of Insurance Certificate Ex.PW1/10, copy of Fitness Certificate Ex.PW1/12, copy of Challan Ex.PW1/13, copy of Registration Certificate Ex.PW1/14, copy of release order Ex.PW1/15, copy of Ration Card Ex.PW1/16, copy of PAN Card Ex.PW1/17, copy of challan Ex.PW1/18, copy of arrest memo Ex.PW1/19, copy of passport of Sh.Vidur Kumar Jain Ex.PW1/20, copy of passport of Rekha Jain Ex.PW1/21, copy of passport of Sahil Jain Ex.PW1/22, copy of passport of Anjana Synghol Ex.PW1/23, copy of mark sheet of Sakil Jain Ex.PW1/24, copy of Haryana Medical Council Certificate Ex.PW1/25 and copy of certificate issued by Maharishi Dayanand University, Rohtak, Haryana Ex.PW1/26.
During cross-examination she clarified that she was not an eyewitness to the accident and deceased was pursuing his internship to complete his MBBS. Further after completion of internship deceased would have been eligible for getting degree of MBBS. She further stated that her son was entitled to get internship allowance of Rs.9,000/- per month from the college but had not filed any proof in respect of same. She further stated that after the death of her son due to depression she has not been practicing as a doctor (BDS). She further deposed that after Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 5 of 24 completing MBBS her son would have been running the hospital in the name of Jainak Medical & Orthopaedic Center at Janak Puri a proprietorship concern in the name of her husband who is also an Orthopaedic surgeon. She further clarified that her other son Sahil Jain had completed his Bio-Medical Engineering and was employed.
No evidence was led on behalf of the respondents.
5. Arguments addressed on behalf of the petitioners were heard. None appeared on behalf of the Insurance Company and Respondent No.1 & 2 to address the arguments.
My Issue-wise findings are as under :-
Issue No. (i) Whether the deceased Dr.Sakil Jain had died due to injuries sustained by him in an accident which took place on 22.12.2010 because of rash and negligent driving of vehicle bearing registration No.HR 61 4176 by Respondent No.1?
In Bimla Devi and Ors. V. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, it was held that in a petition u/s 166 of the Motor Vehicles Act, 1988 the Claim Tribunal has to decide the negligence on the touchstone of preponderance of probability and holistic view is to be taken while Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 6 of 24 dealing with the Claim Petition. In New India Assurance Co. Ltd. V. Sakshi Bhutani & ors, MAC APP. 550/2011 decided on 02.07.2012 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court), it was observed that it has to be borne in mind that the Motor Vehicles Act does not envisage holding a trial for a petition preferred under Section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal is enjoined to hold 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. Further in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943, Hon'ble Supreme Court held that the Tribunals exercising quasi-judicial functions are not courts and are not bound by strict rules of evidence. The relevant portion of the report is extracted hereunder:
".......that tribunals exercising quasi-judicial functions are not courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can unlike courts, obtain all information for the points under the enquiry from all sources, and through all channels, without being fettered by rules and procedure, which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity depend on the facts and circumstances of each case but where such an opportunity has been given, the Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 7 of 24 proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts."
Reference may also be made to observations in Ranu Bala Paul & Others vs. Bani Chakraborty 1999 ACJ 634 Gauhati wherein the claim was allowed after consideration of FIR before the Tribunal.
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accident Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accident Claim Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary enquiry and this is a legislation for the welfare of the society. In N.K.V. Bros. (P) Ltd. v. M. Marumai Ammal, 1980 ACJ 435 (SC), the Supreme Court pointed out that the Accidents Claims Tribunal must take special care to see that innocent victims do not suffer and persons liable do not escape liability merely because of some Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 8 of 24 doubt here and some obscurity there. The court should not succumb to niceties, technicalities and mystic maybes. The court is bound to take broad view of the whole matter."
In the present case, the accident was witnessed by complainant Sugandha, who was travelling with the deceased but unfortunately she was not examined on behalf of petitioners. FIR was registered on her statement. It was submitted by counsel for petitioners that the witness could not be examined since she had already left for US for further studies. In the facts and circumstances, the rash and negligent driving has to be assessed on the basis of record of the criminal case filed on record.
Admittedly the FIR was registered against the driver of offending truck no.HR 61 4176 and the driver fled from the spot as reflected in the FIR itself. Respondent No.1 was also chargesheeted by the police and in the present case he has failed to enter the witness box to controvert the manner of accident as alleged in the FIR. The Mechanical Inspection reports of both the Truck and Skoda Car have been placed on record which point out to the factum of accident as alleged in the FIR. Further the postmortem report corroborates the fact that the death of deceased occurred due to injuries caused in the accident. No complaint appears to have been filed and brought on record by Respondent No.1 & 2 alleging any false implication by the complainant. The accident had taken place in between 4:00hours to 7:50hours when there is low density of traffic and the vehicles are driven at more Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 9 of 24 than normal speed than during peak traffic hours. As such the driver of the Truck was expected to slow down the vehicle when moving at speed and avoid sudden abrupt application of brakes, endangering the life of those in the vehicles behind. I am of the considered view that the facts and circumstances on record lead to an inference that the accident had taken place since the driver negligently applied the brakes for stopping the vehicle. Respondent No.1 as such is prima facie liable for causing the accident by rash and negligent driving.
For the purpose of considering the aspect of contributory negligence it may be appropriate to refer to observations of the Hon'ble High Court in Manvendra Pal Singh's case (supra) in para 11:
"It cannot be laid down as a proposition of law that registration of a criminal case against the driver of the vehicle by itself would be sufficient to draw an inference of negligence. As stated earlier, there may be cases considering the manner of the accident, where such an inference could be drawn in the absence of any rebuttal from the driver and the owner."
In the aforesaid context, observations of the Hon'ble Supreme Court of India in Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak, 2002 ACJ 1720 (SC) may also be beneficially quoted for reference:
"(8) ................... Negligence ordinarily means breach of a legal duty to care, but when used in the expression 'contributory negligence' it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 10 of 24 'author to his own wrong."
It may also be apt to note, the observations of the Hon'ble Apex courts on the aspect of contributory negligence in Municipal Corporation of Greater Bombay v. Laxman Iyer, 2004 ACJ 53 (SC) are apt to be noted:
"(6) ........Where an accident is due to the negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which the liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of other's negligence. Whichever party could have avoided the consequence of other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. [See Charesworth on Negligence, 3rd Edn., para 328]. It is now well settled that in case of contributory negligence, courts have power to apportion the loss between the parties as seems just and equitable.
Apportionment in that context means that damages are reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the part of victim, the question of apportionment does not arise."
In the present case the fact cannot be ignored that the accident had taken place wherein the car driven by the deceased Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 11 of 24 hit the truck from the back side though the primary liability of negligence was of Respondent No.1. The fact that the car struck truck from the back side and could not be stopped reflects that the car was at some excessive speed which could not be controlled by the deceased and contributed in the unfortunate accident. In the facts and circumstances, I am of the opinion that though the accident had resulted due to negligent driving of truck but at the same time deceased Dr.Sakil Jain also himself contributed to the accident. Considering the facts and circumstances, the negligence is apportioned as 30% on the part of deceased Dr.Sakil Jain and 70% on the part of Respondent No.1.
Reference may also be made to judgement passed by the Hon'ble High Court of Delhi by Hon'ble Mr. Justice G.P. Mittal in Oriental Insurance Co. Ltd. v. Parvati Devi & Ors., MAC A)) 621/2012 decided on 28th May, 2015 wherein the liability of insurer was challenged on account of contributory negligence of deceased since the Scorpio car driven by the deceased hit the stationary parked Tata Canter from behind in the wee hours. The Hon'ble High Court in absence of driver of Tata Canter entering into witness box to give his version of the manner of parking Tata Canter held that the Canter was parked without any indication. It was further held that Scorpio car was driven at a very high speed as due to the impact, Tata Canter was thrown at a distance of 40-50 paces from the point of parking. As such, the contributory negligence was assessed on the part of the deceased to the extent of 50%.
In the aforesaid case it may be noticed that the Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 12 of 24 negligence was apportioned as 50-50 since the excessive speed of Scropio was reflected as the Tata Canter was moved 40-50 paces due to the impact of the accident. However, in the present case, the fact cannot be lost site of that the other occupants of the car Sugandha escaped with minor injuries. As such though the deceased contributed to the accident, the negligence is apportioned only to extent to 30% on his part.
Issue No. 1 is accordingly decided.
6. Issue No. (ii) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
(a) Counsel for petitioners relied upon the provisional certificate of registration issued by Haryana Medical Council (Ex.PW1/25) which clearly reflects the qualification of deceased Dr.Sakil Jain as MBBS (November-2009) and the same was issued for purpose of completion of internship for one year from the date of passing of MBBS examination. The marksheets for the MBBS examination from Maharashi Dayanand University, Rohtak have also been placed on record which prove that the deceased had passed the MBBS exam and was undertaking internship.
Dr.Sakil Jain aged about 22 years in all likelihood Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 13 of 24 would have successfully completed the internship, had he not met with the unfortunate accident and had good prospects of job. Alternatively he would have settled into practice either with his parents both of whom are doctors. The Institute from which he had completed MBBS has a reasonably good recognition and the judicial notice can be taken of aforesaid fact.
It is well settled that in order to assess the income of the students, who are at the threshold of joining a professional career, in appropriate cases, the Tribunal can consider the potential income of the victims of an accident as was taken in the case of Haji Zainullah Khan (Dead) by LRs. v. Nagar Mahapalika, Allahabad, 1994 (5) SCC 667 by the Hon'ble Apex Court. In the aforesaid case which involved death of a student of B.Sc. First Year Biology aged about 20 years, the potential income was taken into consideration for purpose of awarding compensation. The compensation of Rs.1,46,900/- was rounded off to Rs.1,50,000/- in the case.
Similarly, in Ganga Devi & Ors. v. New India Assurance Co. Ltd. & Ors. decided by Hon'ble Mr. Justice G.P. Mittal on 23.11.2009, the potential income of a MBBS student who was yet to be awarded the degree was considered for purpose of assessment of compensation. In the aforesaid case, the Tribunal awarded a compensation of Rs.9,35,352/- on the basis of the minimum wages of a Graduate. The Hon'ble High Court in appeal observed that although the deceased was getting a stipend of Rs.
Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 14 of 24 5,000/- per month at the time of his death due to the accident, he would have ultimately joined as a doctor at a salary ranging between Rs.16,000/- per month to Rs.25,000/- per month. Thus, the average monthly income of the deceased was taken as Rs. 18,000/- and after adding 50% towards future prospects, the compensation was enhanced to Rs.21,36,000/-.
It may also be apt to refer to Ramesh Chand Joshi v. New India Assurance Company decided by Hon'ble Mr. Justice G.P. Mittal on 20.01.2010 MAC APP 212-213/2006, wherein the potential income of a BE (Bio-Technology) First Year student of Delhi College of Engineer (DCE) was considered at Rs.38,333/- per month.
In MAC APP. No.189/2014 HDFC ERGO GENERAL INSURANCE CO. LTD. vs. SMT. LALTA DEVI & ORS.
decided by Hon'ble Mr. Justice G.P. Mittal on 12.01.2015, the potential income of a B.Tech Third Year average student from Echelon Institute of Technology, Faridabad affiliated to Maharshi Dayanand University, Rohtak which was not considered to be a premier institute was assessed at Rs.26,851/- per month i.e. the salary drawn by a Junior Engineer with a basic pay of Rs.9,300/- and Grade Pay of Rs.4,200/- minus the Income Tax. The date of accident in the aforesaid case was 19.06.2011 and the average income was assessed by the Tribunal at Rs.25,000/- per month.
I may further refer to the judgment passed by Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 15 of 24 Hon'ble Supreme Court in Civil Appeal No.10289/2013 arising out of SLP (C) no.14629/13 decided on 12.11.2013 in Dr.Jia Lal Prashar & Anr. V/s United India Insurance Company Ltd. The deceased, who expired on 13.05.2002 aged 22 years, in the said case was a final year student of B.E. Industrial Production Engineering, studying in BVB College of Engineering and Technology, Hubli. The Tribunal in the aforesaid case assessed the potential income @ Rs.45,000/- per month and further added 50% towards future prospects for the purpose of assessment of compensation and considered the income as Rs.67,500/-per month. The award passed by the Tribunal was set aside by the Hon'ble High Court in MAC Appeal No513/2009 United India Insurance Company Ltd. V/s Dr. Jia Lal Parashar & ors. decided on December 10, 2012 and the income in the aforesaid case was assessed on the basis of salary of a Group-A officer at about Rs.15,000/- (Basic Rs. 8,000/-) per month along with 30% addition towards inflation. The award passed by the Tribunal was accordingly reduced from Rs.44,33,000/- to Rs.13,97,000/-. However, the Hon'ble Supreme Court in Civil Appeal No.10289/2013 arising out of SLP (C) no.14629/13 decided on 12.11.2013 in Dr.Jia Lal Prashar & Anr. V/s United India Insurance Company Ltd. restored the order passed by the Tribunal, whereby the compensation was assessed at Rs.44,33,000/- in the peculiar facts and circumstances.
Taking into consideration the qualifications of Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 16 of 24 deceased, his past academic record, the level of the institution wherein the deceased was pursuing his MBBS, it can be considered that Dr.Sakil Jain was an above average student and would have been able to procure a good job or settle in practice with his parents had he not met with the unfortunate accident. Unfortunately, no evidence has been led by the petitioners to reflect a yardstick for assessing the potential income which would have been offered to students/doctors passing from aforesaid institute though the same would have varied from student to student depending upon the academic achievements and background of the concerned student/doctor. A guesswork has to be made to assume the salary/income which deceased might have been able to procure which in any case has to be more than that of an ordinary graduate since he was pursuing a professional career and appears to be an above average student as per academic record. Relying upon the judgement passed in HDFC Ergo General Insurance Co. Ltd. vs. Smt. Lalta Devi & Ors. (supra), the potential income of the deceased can be considered at Rs. 26,851/- per month approximately (as drawn by a Class-I Officer for technical cardre) as the same is also similar for MBBS Graduates. Reference may also be made to B. Ramulamma & Ors. v. Venkatesh, Bus Union, Rep. By A.M. Velu Mudaliyar & Anr. 2011 ACJ 1702 wherein it was observed that it is very difficult to determine the income of student who was allowed to complete his course and it is appropriate and reasonable to take salary at the entry level fixed by Government for such jobs.
Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 17 of 24 In Lalta Devi's case the precise potential income was calculated as Rs.26,581/- per month or Rs.3,22,212/- per annum and further, income tax of Rs.13,659/- was deducted for purpose of loss of dependency. However, the addition towards future prospects were not made in the aforesaid case considering the academic record of the deceased.
I am of the considered view that in view of the academic record of the deceased and considering the credibility of the Institution from which he had passed the MBBS in present case he would have definitely a blooming career as a professional doctor and as such there was ample probability of good future prospects of the deceased. As such addition of 50% of income towards future prospects is also required to be made while assessing the compensation as upheld by the Hon'ble Supreme Court in Civil Appeal No.10289/2013 arising out of SLP (C) no.14629/13 decided on 12.11.2013 in Dr.Jia Lal Prashar & Anr. V/s United India Insurance Company Ltd.
(b) Deduction towards personal and living expenses of the deceased:
The father of the deceased is in practice and his brother is also independently settled and earning. The grandmother of the deceased can be presumed to be dependent on the father of the deceased and does not directly happen to be dependent upon the deceased. However, the mother of the deceased, who stopped the practice after the death of the deceased due to depression as per Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 18 of 24 evidence on record can be considered to be dependent for the purpose of assessment and payment of compensation.
Since deceased was a bachelor, deduction towards personal and living expenses will be 1/2 of the income of the deceased and the applicable multiplier shall be as per the age of the mother of deceased. For the aforesaid purpose, reliance is also placed upon Vijay Laxmi & Anr. v. Binod Kumar Yadav & Ors. ILR (2012) 6 DEL 447 and HDFC Ergo General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. (Supra). Reference may also be made to MAC App. 280/2014 Oriental Insurance Company v. Kaila Devi & Others decided on 18.03.2015 by Hon'ble Mr. Justice G.P. Mittal for adopting the multiplier as per the age of the deceased or claimant whichever is higher.
It may be noticed that in Munna Lal Jain and Another v. Vipin Kumar Sharma & Ors. MAC Civil Appeal No. 4497 of 2015 decided on 15.05.2015 Hon'ble Supreme Court of India (Bench of three Judges) observed that the proper selection of multiplier be based upon the age of deceased and not on the basis of age of dependent, since there may be number of dependents whose age may be different and therefore the same has no nexus with computation of compensation.
However, it may be noticed that vide judgment passed in Bharti Axa General Insurance Co. Ltd. v. Smt. Poonam & Anr. MAC. APP. 79/2014 decided on 27.05.2015 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court), the aforesaid judgment passed in Munna Lal Jain (supra) has been distinguished and Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 19 of 24 relying upon the judgments passed by other coordinate benches of equal strength of Hon'ble Apex Court, it was held that the age of the mother will have to be taken for selection of multiplier. The relevant observations in para 11, 12 and 13 may be reproduced:
"11. The learned counsel for the Appellant urges that the three Judge Bench decision of the Supreme Court in Munna Lal Jain (supra) being the latest decision shall be a binding precedent.
12. This Court in Maneesha Karantak (supra) had laid down that the three Judge Bench decision in Trilok Chandra (supra) shall be a binding precedent. The logic of taking the age of the deceased or the Claimant as laid down in Susamma Thomas (Mrs.) (supra) and Trilok Chandara, (supra) was not brought to the notice of the Supreme Court in Munna Lal Jain (supra). Otherwise also, in view of the judgment in Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94 and Union of India v. S.K Kapoor, (2011) 4 SCC 589, the law laid down in U.P SRTC v. Trilok Chandara, (1996) 4 SCC 362 shall be taken as binding precedent.
13.Thus, in the instant case, the age of the mother will have to be taken for selection of multiplier. As per the Voter Identity Card issued by the Election Commission of India, the age of Smt. Poonam, mother of the deceased was 45 years. Thus, the appropriate multiplier will be 14 instead of 17 as adopted by the Claims Tribunal."
As such, the appropriate multiplier has to be adopted in accordance with law laid down in Bharti AXA General Insurance Co. Ltd. vs. Smt. Poonam & Ors. (supra).
In the instant case, as per passport Ex.PW1/21, the age of mother of deceased was approximately 50 years 1 month 22 days as on date of accident i.e. 22.12.2010. The appropriate Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 20 of 24 multiplier to be adopted in the case would be 11 as per judgement passed in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121.
The loss of dependency accordingly comes to Rs. 25,77,954.5 (Rs.26,851/- X 12 =Rs.3,22,212/-per anum - Rs. 13,659/-(Income Tax)+50% of assumed income per anum(Rs. 1,60,166) X ½ X11).
7. Compensation under non-pecuniary heads:
It has been held by the Hon'ble Apex Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the compensation is to be awarded for a sum of Rs.1 lakh towards loss of love and affection, Rs.25,000/- towards funeral expenses and Rs.10,000/- towards loss of estate.
However, Hon'ble Supreme Court awarded Rs. 1,00,000/- towards loss of estate in the case of Asha Verman & Others v. Maharaj Singh & Others, 2015 ACJ 1286 relying upon Kalpanaraj v. State of Tamil Nadu State Trans. Corpn., 2014 ACJ 1388 (SC). Interest @ 9% per annum was awarded on the award amount by the Hon'ble Apex Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC).
Accordingly, petitioners are entitled to Rs.1 lakh towards loss of estate, Rs. 1 lakh towards loss of love and affection and Rs.25,000/- towards funeral expenses.
Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 21 of 24
8. The petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.25,77,954.5 Loss of love and affection to parents Rs.1,00,000/-
Medical Treatment Rs.NIL
Loss of Estate Rs.1,00,000/-
Funeral Expenses Rs.25,000/-
________________
Total Rs.28,02,954.50
_________________
(Rounded off to Rs.28,02,955/-)
(Rupees Twenty Eight Lac Two Thousand Nine Hundred and Fifty Five only) However, since the contributory negligence has been assessed 30% on the part of the deceased and 70% on the part of Respondent No.1, petitioners shall be entitled to 70% of the compensation, which comes to Rs.19,62,068/-.
The claimants/petitioners are also entitled to interest @ 9% p.a. from the date of filing of claim petition w.e.f. 12.07.2011 till realization.
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
9. It is further held that Respondent No.1 (driver), Respondent No.2 (owner) and Respondent No.3 (Insurer) of the offending vehicle are jointly and severally liable to make the Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 22 of 24 payment of compensation to the petitioners/claimants.
10. For the purpose of disbursement, in view of my observations on the point of dependancy, petitioner no. 2 Rekha Jain (mother of deceased) shall be entitled to the 75% and petitioner No.1 Dr.Vidur Kumar Jain shall be entitled to 25% and proportionate interest thereon.
On realization, an amount of Rs.2,50,000/- (Rupees Two Lacs Fifty Thousand only) each shall be released to petitioner no.Dr.Vidur Kumar Jain and petitioner no.2 Rekha Jain (parents of the deceased) out of their respective shares.
The remaining amount of share of petitioner no. 1 Dr.Vidur Kumar Jain and petitioner no.2 Rekha Jain (parents of deceased) along with proportionate up-to-date interest shall be kept in fixed deposits of equal amount in their names in a Nationalized Bank for a period of one year, two years, three years, four years and five years respectively without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in their account.
11. Relief Since the offending vehicle was duly insured, Respondent No.3/Reliance General Insurance Company Ltd. is directed to deposit the award amount of Rs.19,62,068/-with interest @ 9% per annum from the date of filing of claim Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 23 of 24 petition i.e. 12.07.2011 till realization with Nazir of this Court within 30 days under intimation to the petitioners failing which the Insurance Company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
Insurance Company/driver/owner of the offending vehicle are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount with the Tribunal to the claimants and complete details in respect of calculations of interest etc. in the court within 30 days from today.
A copy of this judgement be sent to Respondent No.3/ Reliance General Insurance Co. Ltd. for compliance within the time granted.
Nazir is directed to place a report on record in the event of non-receipt/deposit of the compensation amount within the time granted.
File be consigned to Record Room.
Announced in open court (Anoop Kumar Mendiratta) on 30th November, 2015 Judge MACT-1 (Central), Tis Hazari Courts, Delhi Suit No.617/11 - Dr.Vidur Kumar Jain & Ors. vs. balwan & Ors. 24 of 24