Delhi District Court
Jagdish Prasad Yadav (Aged About 53 ... vs Ajit Kumar on 19 July, 2016
IN THE COURT OF MS. KIRAN BANSAL
P.O. MOTOR ACCIDENT CLAIMS TRIBUNAL:
NORTH-EAST DISTRICT : KKD COURTS : DELHI
MACT No. 36/11 and New MACT No. 15170/15
Unique Case Identification No:- 02402C0019302011
1. Jagdish Prasad Yadav (aged about 53 years)
S/o Late Sh. Din Dayal Yadav (Father)
2. Smt. Bimla Devi (aged about 47 years)
W/o Sh. Jagdish Prasad Yadav (Mother)
Both are R/o H. No. D-78,
Dilshad Garden, Delhi
Also at:- 26, Dhani Mohalla,
Nihalpura, Bahror, Distt. Alwar.
.......Petitioners
Versus
1. Ajit Kumar
S/o Sh. Shambhoo
R/o B-139, Mohad Pur,
New Delhi - 110066 (Driver)
2. Shaj Bharti Travels
R/o 840/27, Gali No. 10,
Madan Puri, Gurgaon, Haryana (Regd. Owner)
3. Shriram General Insurance Co. Ltd.
K-18, Seco, Lajpat Nagar-2,
New Delhi-24 (Insurance Co.)
......... Respondents
i) Date of Institution of Claim Petition : 19/01/2011
ii) Date of Decision : 19/07/2016 APPLICATION U/S 166 & 140 M.V. ACT 1988 FOR GRANT OF COMPENSATION AWAR D
1. Parents of deceased Vipin Kumar Yadav have filed the present Kiran Bansal P.OMACT (NorthEast) MACT No. 36/11 Page 1/11 claim petition under Sec. 166 & 140 of MV Act stating that on 12/11/2010 at about 11:20 PM, Sh. Vipin Yadav (since deceased) was driving a motorcycle bearing regd. no. HR 35C 8213 and was coming from Sunder Nagari side. When the deceased reached at GTB Enclave Road, Opposite Mother Dairy Market, Near GTB Hospital at the same time a Tavera Car bearing no. HR 55FT 7798 which was being driven by respondent no. 1 / its driver at a very high speed in a rash and negligent manner came from Dilshad Garden side (Opposite side of deceased) and hit the deceased after taking sudden right turn as a result of which deceased fell down on the road and sustained multiple head injuries & other injuries on all over his body. Deceased was immediately taken to GTB Hospital where he was declared brought dead. The FIR No. 289/10 u/sec 279/304-A IPC was also registered at P.S. G.T.B. Enclave in this respect.
2. Summons of the claim petition were issued to the respondents. None has appeared on behalf of respondent no. 1 and 2 despite service and they were proceeded ex-parte vide order dated 15/02/2012.
Respondent no. 3 Shri Ram General Insurance Co. Ld. has also filed WS. They have admitted that the vehicle bearing no. HR 55 FT 7798 was insured with them for the period from 25/09/2010 to 24/09/2011 vide Insurance Policy No. 101006/31/11/005197 in the name of Sh. Shaj Bharti Travels.
3. On the basis of the pleadings of the parties, following issues are framed:-
1) Whether deceased died because of injuries sustained in motor Kiran Bansal P.OMACT (NorthEast) MACT No. 36/11 Page 2/11 accident caused by rash and negligent driving of vehicle no. HR 55FT 7798 by respondent no. 1 on 12/11/2010 at about 11:20 PM at GTB Enclave Road, Opposite Mother Dairy Market, Near GTB Hospital, Shahdara, Delhi within the jurisdiction of P.S. GTB Enclave? OPP
2) Whether petitioners are entitled to compensation? If so, to what amount and from whom ?
3) Relief
4. I have heard the counsels for both the parties and gone through the entire evidence on record carefully. My issue wise findings are as below :
5. ISSUE NO. 1Whether deceased died because of injuries sustained in motor accident caused by rash and negligent driving of vehicle no. HR 55FT 7798 by respondent no. 1 on 12/11/2010 at about 11:20 PM at GTB Enclave Road, Opposite Mother Dairy Market, Near GTB Hospital, Shahdara, Delhi within the jurisdiction of P.S. GTB Enclave? OPP Petitioner no. 1 has examined himself as PW1 and Sh. Dharam Pal Yadav as PW2 however, they were not an eye witnesses to the accident. No evidence has been led on behalf of respondents on this aspect. The respondent no.1, Driver has not entered into the witness box to state as to how the accident occurred and to depose that he was not at fault and was not driving the vehicle in rash and negligent manner. In fact, the version of the driver of the offending vehicle is not available as he was proceeded exparte.
In the present case, criminal case record was filed which includes Kiran Bansal P.OMACT (NorthEast) MACT No. 36/11 Page 3/11 copy of FIR,site plan, mechanical inspection report and postmortem report.
In the absence of any eye witness, to determine the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court held 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 and the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New 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 it was held that, mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act. 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 Kiran Bansal P.OMACT (NorthEast) MACT No. 36/11 Page 4/11 Act dealing with compensation is a benevolent legislation and not a penal one.
Further the Hon'ble High of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble Mr. Justice G. P. Mittal, held as under:
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
Therefore, in view of the criminal case record, it is proved that the deceased Vipin Kumar Yadav sustained fatal injuries in the accident Kiran Bansal P.OMACT (NorthEast) MACT No. 36/11 Page 5/11 which occurred on 12/11/2010 due to rash and negligent driving of offending vehicle bearing no. HR 55FT 7798 driven by its driver i.e Respondent no. 1. The issue is decided accordingly.
6. ISSUE NO. 2Whether petitioners are entitled to compensation? If so, to what amount and from whom ?
Income of deceased Father of the deceased PW1 has stated in his affidavit Ex. PW1/X that deceased was doing job with Captain Engineering Works as Purchase Executive and earning Rs. 1.92 Lacs per annum apart from traveling, boarding and lodging expenses. He has placed on record salary slip of the deceased from the month of July 2010 to Nov. 2010 which are exhibited as Ex. PW1/B (colly 5 sheets). Petitioner has also examined PW2 Sh. Dharam Pal Yadav proprietor of M/s Captain Enggi. Works to prove the income of deceased who has proved the appointment letter Ex. PW2/A, salary record of deceased from the month of April 2010 to Nov 2010 Ex. PW2/B (colly 26 sheets), The Registration Certificate of Importer- Exporter Code (IEC), Certificate of TDS Intermediary and Registration Certificate Tin Number of Company Ex. PW2/C (colly 3 sheets) . PW 2 has further deposed that his company gives an annual salary increment of 5 to 15% depending upon the performance of the employer and that he was paying Rs. 25000/- to another employee with the same experience in 2012, when PW 2 came to depose before the present tribunal. In view of the testimony of PW 2, it is evident that the salary/income of deceased would have grown year after year and he had bright future prospect. His Kiran Bansal P.OMACT (NorthEast) MACT No. 36/11 Page 6/11 salary slip shows that his basic salary was Rs. 11200/- and he was getting 3000/- as HRA and Rs. 1800/- as DA and thus, his total income was Rs. 16000/- per month.
Petitioner has deposed on oath that at the time of accident deceased was studying in M.A. He has placed on record academic certificates of deceased which includes the photocopy of markesheet of BA Part III Exam April 2008, marksheet of part I examination April 2006, BA part II Exam April 2007 and certificate with markesheet of Secondary School Examination which all are exhibited as Ex. PW1/D to prove the educational qualification of deceased.
Age of deceased PW1 has stated on oath that deceased was born in the year 1986. As per the photocopy of DL Ex. PW1/C and certificate with marksheet of deceased, date of birth of deceased was 15/07/1986. As per Postmortem report, the age of deceased was 24 years. Therefore, age of deceased is taken to be around 24 years as on the date of accident.
7. Ld. Counsel for Insurance Co. has also argued that as the mother of the deceased is aged about 47 years and therefore, multiplier applicable would be 13 whereas as per the ld. Counsel for the plaintiff, as the deceased was aged 24 years, multiplier of 18 should be applicable on the basis of the age of the deceased and not on the basis of age of mother of the deceased.
10. In M. Mansoor & Anr. Vs. United India Insurance Co. Ltd. & Anr., 2013 STPL(web)860SC, Supreme Court of India and Amrit Kiran Bansal P.OMACT (NorthEast) MACT No. 36/11 Page 7/11 Bhanu Shali & Ors. Vs. National Insurance Co. Ltd. & Ors. 2012 VI AD(S.C.) 399 Civil Appeal no. 3397 of 2012, It has been held that the selection of multiplier is to be based on the age of the deceased and not on the basis of the age of dependents.
11. In Mohd. Hasnain & Ors. Vs. Jagram Meena & Ors. MAC. ACC 152/2014 decided by Hon'ble Justice Suresh Kait, of Hon'ble High Court of Delhi, on 24.03.2014, the question of appropriate multiplier in the case of unmarried deceased was raised and the issue, whether the multiplier is to be ascertained on the basis of age of the deceased or on the basis of age of the claimants was answered.
It was held that in the ascertainment of purchasing capacity of the victim, the age of the claimant has no relevance because of the fact that it has no nexus with the assessment of the loss of dependency.
It was further held that ........(i) age of the deceased (ii) income of the deceased and (iii) number of dependents are to be taken into account for the purpose of selecting the multiplier. In the assessment of dependency, the courts/tribunals are computing the purchasing capacity of the deceased; not the claimants and therefore, the age of the victim is the proper factor for selecting the correct multiplier.
In the judgement Munna Lal Jain and Others Vs. Vipin Kumar Sharma and Others MANU/SC/0640/2015 decided by Hon'ble Supreme Court on 15/05/2015 it has been held that multiplier is to be used with reference to the age of the deceased. It was further held that 50% of the deduction is to be made in case of bachelor. On the aspect of future prospects, it was also held that in case of self employed persons also, if the deceased is below 40 years, there must be addition of 50% to the Kiran Bansal P.OMACT (NorthEast) MACT No. 36/11 Page 8/11 actual income of the deceased while computing future prospects Therefore, multiplier to be applied is 18. Deceased was unmarried and was taking care of his father and mother. However, PW1 father of deceased has deposed on oath that he was serving in Delhi Police as Sub Inspector and drawing salary of Rs. 23,000/--24,000/- per month. Deceased had thus, only one dependent i.e. his mother, petitioner no. 2. Therefore, 1/2 is deducted for his personal expenses. Therefore, the total loss of dependency would be calculated as follows :
Rs. 16,000/- (Per month) X 12 (Annual) X 18 (Multiplier) = Rs. 34,56,000/-.
Rs.34,56,000/- + Rs. 17,28,000/- (50% future prospects) = Rs. 51,84,000/-.
Rs.51,84,000/- - Rs. 25,92,000/- (1/2 for personal expenses) = Rs. 25,92,000/-
Besides this, petitioner is also entitled for compensation under the following heads:-
Love and affection Rs. 100,000/-
Loss of Estate Rs. 10,000/-
Funeral expenses Rs. 25,000/-
Total Rs.1,35,000/-
Thus, the total compensation would amount to Rs. 27,27,000/-.
8. Liability Respondent no.3 being insurance company in its written statement has admitted that there is valid insurance policy issued for the period Kiran Bansal P.OMACT (NorthEast) MACT No. 36/11 Page 9/11 from 25/09/2010 to 24/09/2011 vide Insurance Policy No. 101006/31/11/005197. There is no evidence on behalf of respondent no.3 to show that there was any violation of the rules and terms of policy by the respondents no.1 & 2. Hence, I am of the opinion that respondent no.3 being insurance company is liable to pay the compensation on behalf of respondents no.1 & 2.
9. Relief Award is passed directing Respondent no. 3, M/s Shriram General Insurance Co. Ltd. to pay to the claimant/petitioner no. 2 a sum of Rs. 27,27,000/- (including interim compensation, if any) by way of depositing cross cheque in favour of petitioner no. 2 along with interest @ 9% per annum from the date of filing of the claim petition (i.e. 19/01/2011). If award is not complied within 30 days, respondent no.3 shall pay penal interest @ 12% p.a. for the default period. Upon deposit of award amount, cheque be deposited in any nationalized bank and the bank manager of said bank is directed to prepare FDRs of the 50% of the award amount for a period of five years with monthly interest to be credited in her saving bank account and the remaining amount be released to petitioner no. 2. Branch Manager shall comply with following directions :-
(a) Withdrawal from the aforesaid account shall be permitted to the petitioner after due verification and the bank shall issue photo identity card of petitioner to facilitate identity.
(b) No cheque book be issued to the petitioner without the permission of the court.
Kiran Bansal P.OMACT (NorthEast) MACT No. 36/11 Page 10/11
(c) The original fixed deposit receipts shall be retained by the bank in the safe custody. However, the original pass book shall be given to the petitioner along with photocopy of the FDRs.
(d) The original fixed deposit receipt shall be handed over to the petitioner on the expiry of the period of the FDRs.
(e) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of the court.
(f) The petitioner shall furnish all the relevant documents for opening of the saving bank account and fixed deposit account to the Branch Manager, any nationalized bank.
10. Put up for compliance on 19.08.2016.
Attested copies of the award be furnished to the concerned parties from court for compliance. File be consigned to record room.
Pronounced in Open Court on (KIRAN BANSAL)
19/07/2016 P.O. MACT(North-East)
KKD Delhi
Kiran Bansal
P.OMACT (NorthEast)
MACT No. 36/11 Page 11/11