Delhi District Court
Smt. Maya (Widow) vs Sh. Indresh (Driver) on 24 February, 2012
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL
II, DWARKA COURTS, NEW DELHI
MACT NO.: 09/11
IN THE MATTER OF :
1. Smt. Maya (Widow)
W/o Late Sh. Madhav Bisht
2. Ms. Abhilasha Bisht (Daughter)
D/o Late Sh. Madhav Bisht
3. Sh. Abhishek Bisht (Son)
S/o Late Sh. Madhav Bisht
All residents of RZ51/B, Gali No. 6
Main Kailash Puri, Khasra No.622
Palam Colony, Village Nasirpur, Delhi.
Also At:
1412, Maruti Vihar,
Chakkarpur, Gurgaon, Haryana.
......Petitioners
Versus
1. Sh. Indresh (Driver)
S/o Sh. Kamlesh Chander
R/o Village Kumholi, P.O. Taj Pur
P.S. Muhammdabad
Distt. Farrukhabad, U.P.
2. Sh. Inderjit Singh (Owner)
S/o Sh. Jai Chand
Maya & Ors. v. Indresh & Ors. Page 1 of 13
R/o H.No. 25, Gali No. 1
Mahipal Pur, New Delhi.
Also At:
L128/5, Mahipal Pur, New Delhi.
3. New India Insurance Co. (Insurer)
SCO104106, Sector34A, Chandigarh
.........Respondents
FILED ON : 05.02.2011
RESERVED ON : 23.02.2012
DECIDED ON : 24.02.2012
: J U D G M E N T :
1. This is a claim petition under Section 166 & 140 of the Motor Vehicles Act, 1988 for grant of compensation.
2. Petitioner No. 1 is the widow, Petitioner No. 2 is the daughter and Petitioner No. 3 is the son of the deceased.
3. Respondent No. 1 is the driver of offending vehicle, Respondent No. 2 is its registered owner and Respondent No. 3 is the insurance company which has insured the offending vehicle.
4. Brief facts as stated in the claim petition are that on 05.11.10, around 1.30 a.m., deceased was driving his scooter and was on his way back to his home.
5. In front of Maruti Udhyog Ltd., where the petitioner was employed, a canter bearing registration no. HR55B4601 came at a Maya & Ors. v. Indresh & Ors. Page 2 of 13 very high speed and said vehicle was being driven rashly and negligently.
6. The said vehicle hit the scooter of the victim from backside. The victim fell down on the road and got crushed under the wheels of said offending vehicle.
7. It is stated that the victim died on the spot. Post mortem was performed at Mortuary, General Hospital, Gurgaon, Haryana.
8. It is stated that the deceased was 52 years old when he died in the fatal accident and was earning Rs. 41,643/ per month.
9. Petitioners, who are his LRs, have claimed a compensation of Rs. 1 Crore with interest @ 18% p.a. from the date of filing of the claim petition till its realisation.
10. Written Statement was filed by Respondent No. 1 and 2 who stated that no accident was caused by the alleged offending vehicle.
11. Written statement was also filed by Respondent No. 3 who stated that vehicle no. HR55B4601 was insured in the name of Sh. Inderjeet Singh Sehrawat vide policy no. 350200331090100201839 valid from 17.11.09 to 16.11.10. Rest of averments made in the claim petition were declined.
12. On the basis of pleadings of the parties, following issues were framed: Maya & Ors. v. Indresh & Ors. Page 3 of 13 ISSUES
1) Whether Madhav Bisht, husband of petitioner no. 1 had sustained fatal injuries on his person in an accident which took place on 05.11.2010 due to negligent driving of vehicle bearing registration number HR55B4061, being driven in a negligent manner by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3? OPP
2) In case, issue no. 1 is decided in favour of petitioner, to what amount of compensation he is entitled to and from whom? OPP
3) Relief.
13. Petitioner No. 3 entered witness box as PW1 and deposed similar facts as were already deposed by claimants in their claim petition.
14. Death Certificate of the deceased was exhibited as Ex. PW1/1, Pay Slips for the month of October, 2010 to April, 2010 were exhibited as Ex. PW1/2 to Ex. PW1/8 and Election ICards of the petitioners were exhibited as Ex. PW1/9 to Ex. PW1/11.
15. In cross examination PW1 deposed that none of the LRs have been offered any job on compassionate ground. He admitted that the scooter which his father was driving was not insured but his father was having a driving license. He deposed that the petitioners have received some amount from the employer of the deceased under different heads.
Maya & Ors. v. Indresh & Ors. Page 4 of 13
16. Evidence of Sh. Naveen Awasthi was recorded as PW2. He stated that he is an eye witness to the accident. PW2 stated that the accident was caused by rash and negligent driving by Respondent No. 1. In cross examination he clarified that FIR was registered on his statement. He also stated that he had not seen the driver at the time of the accident.
17. Third witness examined on behalf of petitioners was one Sh. O.P. Sharma, Sr. Executive of Maruti Suzuki India Ltd. He exhibited as Ex. PW3/2 the appointment letter alongwith terms and conditions given to the petitioner on 19.07.1984 for appointment to the post of Technician GradeV and salary slip of the deceased as on 01.04.10 was exhibited as Ex. PW3/3.
18. In cross examination he deposed that a sum of Rs. 4,68,000/ was given to the LRs of the deceased towards death gratuity and letter dated 02.02.11 where details of payments given to LRs of the deceased by his employer were reflected was exhibited as Ex. PW3/R1. He stated that the petitioners would be entitled to the pension as per policy of the employer. He denied that there is any scheme of the employer to grant job to family members of the deceased on compassionate ground.
19. Ld. Counsel for petitioner tendered copies of criminal record as Ex. P1 to P26 and closed evidence. Maya & Ors. v. Indresh & Ors. Page 5 of 13
20. No evidence was brought on record on behalf of respondents.
21. Arguments were addressed by Sh. Gaurav Sood, learned Counsel for petitioners and Ms. Lalita Bajaj, learned Counsel for insurance company.
22. On the basis of pleadings of parties and evidence on record, issuewise findings are as under: Issue No. 1 :
23. The burden to prove this issue is always on the petitioners.
24. The petitioners have examined an eye witness Sh. Naveen Awasthi as PW2 who has deposed that deceased was his friend and both of them were going to their homes after finishing their duties on their separate vehicles. He stated that both of them were employed at Maruti Udhyog Ltd., Gurgaon.
25. He deposed that as soon as they had come out of Maruti Udhyog Ltd. on the road, one canter no. HR55B4601 came at a very high speed which was being driven rashly and negligently and without blowing any horn had hit the two wheeler of the deceased from behind. He further deposed that the accident proved fatal and the victim died on the spot itself.
26. This witness was cross examined by Counsel for Maya & Ors. v. Indresh & Ors. Page 6 of 13 Respondent No. 1 and 2 but they could not elicit anything to show the innocence of respondent no. 1.
27. Respondent No. 1, the driver of offending vehicle, did not come to the witness box to contradict the version given by PW2.
28. Certified copy of criminal case is on record as Ex. P1 to P26.
29. Police after investigation has filed charge sheet against respondent no. 1. Therefore, applying the principles of Res Ipsa Locquitor it is held that the accident was caused by rash and negligent driving of respondent no. 1 which caused fatal injuries to the deceased. Issue no.1 is therefore decided in favour of petitioners and against the respondents.
Issue No. 2:
30. The age of deceased was 52 years. This fact is not disputed. During the course of arguments photocopy of driving license and permanent account number of the deceased was filed as per which the date of birth of deceased was 09.03.58 meaning thereby that he was between the age of 52 to 53 years on the date of accident.
31. There are three dependents. One is the widow, second is the daughter and third is the son. Age of daughter is 21 years and age of son is 25 years.
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32. Ld. Counsel for insurance company argued that the son is major and should not be treated as a dependent.
33. Even if the above contention of Ld. Counsel for petitioner is accepted it will not make any difference because deduction for personal expenses will be 1/3rd when dependents are two or three. ( Sarla Verma Vs. DTC & Ors. (2009) 6 SCC 129).
34. Salary of the deceased in the month of October, 2010 is shown in Ex. PW1/2. Description of earnings and deductions are as under: Earnings Deductions Basic Pay : Rs. 18000/ HRA : Rs. 8000/ UNIF. MAIN. REIMB. : Rs. 1000/ CONV. REIMB. : Rs. 800/ CHILD EDU. ALLOW. : Rs. 200/ B Shift Allowance : Rs. 420/ Special Allowance : Rs. 13,223/ Income Tax : Rs. 2,361/ P.F. : Rs. 2,160/ VPF : Rs. 5000/ INT. ON (MV) Loan : Rs. 1080/ Welfare Club : Rs. 15/ Death Relief Fund : Rs. 250/ Death Relief Fund : Rs. 250/ Canteen : Rs. 116.64 Canteen : Rs. 303.94 Superannuation Fund : Rs. 100/ Haryana Welfare Fund : Rs. 5/ Maya & Ors. v. Indresh & Ors. Page 8 of 13 Rs. 41,643/ Rs.11,641.58
35. A perusal of above shows that the total salary including all allowances etc. is Rs. 41,643/.
36. However, from this figure Uniform Maintenance Reimbursement of Rs. 1000/ is to be deducted because this reimbursement was actually utilised by the deceased for uniform maintenance during his lifetime.
37. The submission of Counsel for insurance company to deduct conveyance reimbursement of Rs. 800/, children education allowance of Rs. 200/, BShift allowance of Rs. 420/ and special allowance of Rs. 13,223/ is rejected on the basis of judgment of Hon'ble High Court of Delhi in the case of Vishakha & Ors. v. Shree Pal & Ors. MAC App. No. 412/11 dated 03.01.12 where it was held that all perks paid to an employee by employer should be included for computation of the deceased's income.
38. Counsel for insurance company has argued that a sum of Rs. 4,68,000/ given as death gratuity to the LRs of deceased be deducted. For this she is relying on evidence of PW3.
39. There is no provision of deducting death gratuity payable to the LRs of the deceased because that is payable in the event of death of any person and not in the event of death by accident Maya & Ors. v. Indresh & Ors. Page 9 of 13 alone. Reliance can be placed on Shyam Singh v. Jhangru Prashad, 2003 (8) AD (Delhi) 37 where it is held that collateral benefits like life insurance, gratuity, provident fund cannot be deducted from the compensation to the LRs of a victim of road accident under Motor Vehicles Act. Same was the view of Hon'ble High Court in the case of Dharam Singh v. Parveen Sehgal AIR 1992 Delhi 347.
40. However, income tax is to be deducted from the income of the deceased.
41. Income up to Rs. 1,60,000/ is exempt from income tax. Taxable income of deceased was Rs. 4,87,716/ 1,60,000/ = Rs. 3,27,716/. Income tax on income from Rs. 1,60,000/ to Rs. 5,00,000/ is 10%. Deducting Rs. 32,771/ from Rs. 3,27,716/ and adding Rs. 1,60,000/ (Rs. 3,27,716/ Rs. 32,771/ + Rs. 1,60,000/ = Rs. 4,54,945/) to it shows that annual income of the deceased would be Rs. 4,54,945/ which is rounded off to Rs. 4,55,000/ p.a.
42. After making a deduction of 1/3rd income for personal expenses, the net contribution to the family will be Rs. 3,03,334/ p.a.
43. The multiplier applicable would be 11. Therefore, the total Loss of Dependency would be Rs. 33,36,674/.
44. For Loss of Love and Affection another compensation of Rs. 25,000/ would be given to all the petitioners jointly relying Maya & Ors. v. Indresh & Ors. Page 10 of 13 upon ICICI Lombard General Insurance Co. Ltd. v. Kiran, MAC. App. No. 851/11 dated 17.01.12.
45. For Funeral Expenses another sum of Rs. 5000/ is granted to the petitioners.
46. For Loss of Estate, a sum of Rs. 5000/ is granted to the petitioners. Therefore, total compensation payable to petitioners would be Rs. 34,03,904/.
47. This compensation would be payable with interest @ 7.5% p.a. from the date of filing of this claim petition which is 05.02.11 till deposit by insurance company.
48. Compensation of Rs. 50,000/ given vide interim award shall be deducted from the respective shares payable to the petitioners.
49. Counsel for petitioners had raised a point that loss of future increase in earnings be also given to the petitioners even if the age of deceased was 52 years. Reliance is placed on K.R. Madhusudhan & Ors. v. The Administrative Officers & Anr. I (2011) ACC700 (SC) and Meena Khanna v. Ram Niwas, MAC App. No. 723/2010 dated 05.08.11.
50. In the case of K.R. Madhusudhan (Supra) there was clear and incontrovertible evidence on record that the deceased was entitled and in fact bound to get a raise in future. Therefore, it was Maya & Ors. v. Indresh & Ors. Page 11 of 13 held as a case of 'exceptional circumstances' and petitioners were held entitled to increase in income due to future prospects.
51. The case of Meena Khanna (Supra) was a case decided on the basis of minimum wages which are revised not only to meet the inflation but also to improve the standard of living of the lowest paid workers.
52. In present case, there is no evidence that deceased was entitled to and infact bound to get a raise in future. Evidence of employer PW5, does not even give any hint of increase in future. Therefore, facts of this case are different from the facts of the case of K.R. Madhusudan (Supra) referred above.
53. Similarly, in case of Meena Khanna, the minimum wages were Rs. 3,470/ per month and based on the fact that the minimum wages get doubled over a period of 10 years because of inflation and rise in price index, 50% was added to the minimum wages which was drawn by the deceased.
54. In this case, the deceased was not expected to get double income in next 10 years. There is no such evidence on record.
55. Therefore, submission of petitioners to give benefit of increase in income due to future prospects is rejected.
56. Petitioner no. 1 will be given a compensation of Rs. 15 lacs with proportionate interest. Same shall be deposited in 10 FDRs Maya & Ors. v. Indresh & Ors. Page 12 of 13 of Rs. 1.5 lac each with maturity period of 110 years. Petitioner no.1 will be entitled to receive quarterly interest, if so desired. FDRs shall be kept in SBI, Dwarka Courts, New Delhi.
57. Petitioner no. 2 will be given a compensation of Rs. 10,00,000/ with proportionate interest. A sum of Rs. 1.08 lacs shall be given to her by account payee cheque as a request was made on her behalf to release this amount in her favour to enable her to pay fee of professional course being undertaken by her. Balance Rs. 8,92,000/ shall be kept in 4 FDRs in SBI, Dwarka Courts, New Delhi of Rs. 2,23,000/ each for a period of 2, 4, 6 and 8 years. She will be at liberty to get quarterly interest if so desired.
58. Petitioner no. 3 will be given balance compensation with proportionate interest which shall be kept in SBI, Dwarka Courts in four FDRs of equal amount for a period of 2, 4, 6, and 8 years. He will be at liberty to draw quarterly interest, if so desired.
59. Let compensation be deposited within 30 days under intimation to petitioners by registered post.
60. A copy of this order be given dasti to all the parties.
61. File be consigned to Record Room.
Announced in the Open Court.
On the 24th Day of February, 2012 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNAL, DWARKA COURTS, NEW DELHI.
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