Delhi District Court
Smt. Saraswati vs Ajay Kumar Singh (Driver) on 27 March, 2021
IN THE COURT OF SH. VIVEK KUMAR GULIA
P.O : MOTOR ACCIDENT CLAIMS TRIBUNAL
EAST DISTRICT : KARKARDOOMA COURTS: DELHI
In the matter of :
MACP No. 532/2016
CNR No. DLET010034842016
1. Smt. Saraswati
W/o Sh. Pratap Singh
2. Pratap Singh S/o Har Lal
Both R/o E83, Sector12,Vijay Nagar,
Ghaziabad, ................... Petitioners
Versus
1. Ajay Kumar Singh (Driver)
S/o Sh. Uday Pratap Singh
R/o 790, Extension Shalimar Garden,
PS Sahibabad, Ghaziabad, U.P.
2. Yogesh (insured/ owner in possession)
R/o H. No. 103, 2nd floor, Vishwa Ram Park,
Laxmi Nagar, New Delhi.
3. IFFCO Tokio General Insurance Co. Ltd. (insurer)
Units A & B4, 3rd floor, TDI Centre,
Jasola, New Delhi110025.
4. Vipina Gupta W/o Sh. Sandeep Gupta (Regd. Owner).
R/o D72, Sector50,
Noida, District G.B. Nagar, U.P. ..................Respondents
Date of Institution : 10.03.2016 Date of Reserving : 15.03.2021 Date of Judgment : 27.03.2021
__________________________________________________________________________ MACP No. 532/16, Saraswati & Ors. vs. Ajay Kumar Singh & Ors.; Page 1 of 14 AWARD
1. By this award, claim petition under section 166 & 140 of Motor Vehicles Act, 1988, would be decided.
2. The important facts of the case are as under. Deceased Arun Kumar, son of petitioners, died on account of a motor accident happened on 19.02.2016 at about 06:30 a.m., in front of Almatee D10, Sector63, Noida, U.P. In connection with this accident, a case crime No.204/2016, u/s 279/304A IPC, was registered at PS PhaseIII. As per FIR, at the relevant time, complainant Sonu and deceased left house for their work place at sector63, Noida by TSR and after deboarding the TSR at Sector 63, when they reached at the aforesaid place, one car bearing registration no. UP16Q1282 (in short "offending vehicle") came from behind and hit Arun Kumar resulting into his death. In view of the above, petitioners claimed a compensation of Rs. 50 lakhs.
3. On service of notice of the petition, all the four respondents marked appearance and filed their separate written statements. Respondent no.1 filed written statement while denying the allegations vaguely. Respondent No.2 submitted in his written statement that he has no connection with the offending vehicle as prior to accident, he had sold it to the sister of respondent No.1 and document in writing was executed in this __________________________________________________________________________ MACP No. 532/16, Saraswati & Ors. vs. Ajay Kumar Singh & Ors.; Page 2 of 14 regard. Respondent No.3/ insurance company mentioned in its written statement that respondent No.1 and insured committed breach of insurance policy as driver of the offending vehicle was not carrying valid driving license at the time of accident and therefore, insurance company is not liable to pay compensation to the petitioners. Respondent No.4, the registered owner, mentioned in written statement that he had sold the offending vehicle to M/s Crown Honda much prior to the accident and selling price was adjusted by the company in the bill pertaining to new vehicle.
4. On the basis of pleadings, following issues were framed on 22.09.2018 :
(i). Whether Mr. Arun Kumar died in a motor vehicular accident that occurred on 19.02.2016 at about 6.30 a.m. in front of Almatec D10, Sector63, Sub Distt. Dadri, Gautam Budh Nagar, U.P. within the jurisdiction of PS Sector71, PhaseIII, Sub Distt, Dadri due to rash and negligent driving of motor vehicle bearing registration No. UP16Q1282 by the respondent No.1/ Ajay Kumar Singh? (OPP)
(ii). Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? (OPP)
(iii). Whether the petitioners are entitled to interest on the award amount, if so, at what rate of interest and for which period?
(iv). Relief.
__________________________________________________________________________ MACP No. 532/16, Saraswati & Ors. vs. Ajay Kumar Singh & Ors.; Page 3 of 14
5. Petitioner side examined 2 witnesses.
5.1 Petitioner No.1 Saraswati (PW1), mother of deceased, deposed about the manner of accident and relied on aadhaar card, PAN card of herself and petitioner No.2, educational certificate of deceased Arun Kumar, medical treatment record and certified copies of criminal case record Ex.PW1/1 to Ex.PW1/7.
5.2 PW2, Sonu, was examined as an eyewitness of the accident.
6. Respondents no.3/ insurer examined two witnesses in their defence.
6.1 Sh. Mehmood Ahmed (R3W1), Junior Assistant, ARTO, Maharajganj, Ghazipur, U.P. produced the report pertaining to DL No. A11454/GZP/09 Ex.R3W1/2 of respondent no.1 6.2 Sh. Roshan Kumar Thakur (R3W2) Sr. Executive, M/s IFFCO Tokio GIC Ltd, FAI House, Jeet Singh Marg, Qutub Institutional Area, New Delhi proved the copy of notice u/o 12 Rule 8 CPC sent to owner and driver, their postal receipts, tracking report and office copy of insurance policy Ex.R3W2/1 to Ex.R3W2/4.
7. Respondent No. 4 has examined Sh. Amardeep Jassal (R4W1), AR of Action Automotive P. Ltd, Sector63, Noida, U.P. and proved the documents Ex.R4W1/1 to Ex.R4W1/3 regarding sale of vehicle.
__________________________________________________________________________ MACP No. 532/16, Saraswati & Ors. vs. Ajay Kumar Singh & Ors.; Page 4 of 14
8. Respondent No.1 and 2 opted not to lead evidence.
9. I have heard Sh. Dheeraj Kulshrestha, counsel for petitioners; Mohd. Rafi, Ld. Counsel for respondent No.1; Sh. Surender Sharma, Ld. Counsel for respondent No.2; Sh. Akshay Kumar, counsel for respondent no.3/ insurer and Sh. Dalip Aggarwal, Ld. Counsel for respondent No. 4 Record of the case has also been perused.
ISSUE No. 1 :
10. In an action founded on the principle of fault liability, the proof of rash and negligent driving of the offending vehicle is sine qua non. However, the standard of proof is not as strict as applied in criminal cases and evidence is tested on the touchstone of principle of preponderance of probabilities.
11. PW2 Sonu was examined as an eyewitness. He has deposed that on 19.02.2016 at about 06:30 a.m., he along with deceased Arun Kumar was going on foot from Sector12, Vijay Nagar, Ghaziabad towards Sector63, Noida and when they reached in front of Almatee D10, Sector63, Noida, a vehicle bearing registration number UP16Q1282 came from behind at fast speed and in rash and negligent manner and hit Arun Kumar, as a result of which he received serious injuries. He further mentioned that he had taken injured in TSR to Fortis Hospital where he succumbed to injuries on the same day. During crossexamination conducted by counsel for respondent __________________________________________________________________________ MACP No. 532/16, Saraswati & Ors. vs. Ajay Kumar Singh & Ors.; Page 5 of 14 No.1, PW2 mentioned that at the time of accident he was behind the deceased and the offending vehicle overtook him from his right side and hit the deceased with its front left side. He further denied the suggestion given by learned counsel for respondent no.1 that the accident was caused by a truck and not by offending vehicle. During crossexamination conducted by respondent no.4, PW2 stated that he cannot tell the type of vehicle which hit his deceased nephew though its colour was Saleti (gray).
12. As far as the involvement of the vehicle in question is concerned, it is observed that FIR was lodged by PW2 without any delay and registration number of the offending vehicle was clearly mentioned in the FIR. Though the cause of accident has been disputed by respondent no.1 on the ground that offending vehicle was first hit by an unknown truck from behind and that is why it sustained damages on its back side, as reflected in the mechanical inspection report, but in view of this Tribunal, even if it is accepted that the offending vehicle was found slightly damaged from back side, that itself is not sufficient to indicate that he was hit by a truck from back side and only after it hit deceased. Had the offending vehicle was hit by a truck, the driver was expected to stop the vehicle after accident and inform the police about it. Moreover, it was expected from him to chase the truck to get the driver arrested. However, no such steps were taken by respondent and the omission belies his version. __________________________________________________________________________ MACP No. 532/16, Saraswati & Ors. vs. Ajay Kumar Singh & Ors.; Page 6 of 14
13. Further, it is not disputed that respondent no.1 was chargesheeted by the police in the aforesaid criminal case for causing accident by driving the offending vehicle in rash and negligent manner resulting into death of Arun Kumar and that has not been challenged by him in any manner.
14. Further, treatment record Ex.PW1/6 and postmortem report of deceased Ex.PW1/7 indicate that he suffered number of serious injuries in the road accident which resulted into his death.
15. In view of above, it is held that petitioners have been able to establish on the basis of preponderance of probabilities that deceased Arun Kumar died consequent to the injuries sustained in a motor vehicular accident caused due to rash and negligent driving of offending vehicle by the respondent no.1. Therefore, issue no.1 is decided in favour of the petitioners.
ISSUE NO. 2:
16. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be pittance. ASSESSMENT OF INCOME OF THE DECEASED:
17. PW1, Saraswati (mother of deceased) mentioned that her deceased son was doing the private service and was earning __________________________________________________________________________ MACP No. 532/16, Saraswati & Ors. vs. Ajay Kumar Singh & Ors.; Page 7 of 14 Rs.15,000/ per month. During crossexamination conducted by respondent no.4, she mentioned that her deceased son was earning Rs.10,000/ and he used to do the work of cleaning. Further, PW2, Sonu mentioned that his deceased nephew was employed as Sweeper on contract basis with NOIDA authority but he did not have any employment identity card. Be that as it may, it is evident that no material was brought on record to show the employment or income of deceased. Further, PW2 placed on record 8th class markssheet Ex.PW1/5 of deceased. Thus, income of deceased would be considered on the basis of minimum wages for unskilled category prevailing in the State of U.P at the time of accident (19.02.2016), which were Rs.6,815/ per month.
Accordingly, the income of the deceased is taken as Rs.6,815/ per month.
APPLICATION OF MULTIPLIER:
18. The copy of 8th class markssheet Ex.PW1/5 of deceased shows his date of birth as 03.08.1989, whereas copy of his birth certificate placed on record indicates his date of birth as 03.10.1988. Thus, age of deceased comes to 2627 years on the date of accident. Therefore, multiplier of 17, as applicable to age group between 2630 years, would be applicable. DEDUCTION TOWARDS PERSONAL LIVING EXPENSES:
19. Since the deceased was unmarried at the time of accident, 1/2 (half) of his income is to deducted towards his __________________________________________________________________________ MACP No. 532/16, Saraswati & Ors. vs. Ajay Kumar Singh & Ors.; Page 8 of 14 personal living expenses.
FUTURE PROSPECTS:
20. The deceased can be considered as a selfemployed.
Following the decision of a Constitution Bench of the Supreme Court in the case, National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (AIR 2017 SC 5157), an addition of income of deceased to the extent of 40% has to be considered.
LOSS OF DEPENDENCY:
21. Applying the multiplier of 17, after making deduction of 1/2 from the income of the deceased and addition of 40% of future prospects, the loss of dependency is computed as Rs.9,73,182/ (6,815x140/100x1/2x17x12).
MEDICAL EXPENSES :
22. The petitioners have placed on record the medical bill Ex.PW1/6 for a total sum of Rs.19,606/. This bill is in original and found in order and has not been challenged by counsel for respondents in any manner during crossexamination conducted by them. Thus, said amount of Rs.19,606/ is granted to the petitioner under this head.
ENTITLEMENT :
23. The parents of deceased are the claimants in this case.
As per decision in case of Sarla Verma & Ors. vs. DTC & Anr., (2009) 6 SCC 121, father cannot be considered dependant on his __________________________________________________________________________ MACP No. 532/16, Saraswati & Ors. vs. Ajay Kumar Singh & Ors.; Page 9 of 14 deceased son in absence of any evidence to the effect that he was unemployed or incapable to earn on account of illness, etc. In this case, nothing has come on record that petitioner No.2, father of deceased was not earning or that he was dependant on his deceased son. Therefore, it is held that petitioner no.2/ father of deceased shall not be entitled to any compensation and only petitioner no.1 (mother of deceased) would be entitled to the entire compensation.
NONPECUNIARY DAMAGES:
24. In view of the decision of Supreme Court, dated 31.10.2017, in case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (AIR 2017 SC 5157), a compensation of Rs. 40,000/, 15,000/ and Rs.15,000/ respectively has been fixed on account of loss of consortium, loss of estate and funeral expenses and further, it is required to be enhanced @ 10% in every three years. Therefore, a compensation of Rs. Rs. 44,000/, 16,500/ and Rs.16,500/ respectively on account of loss of consortium, loss of estate and funeral expenses is required to be granted. Thus, a sum of Rs.77,000/ (44,000+16,500+16,500) is granted under this head.
25. In view of above, petitioner No.1/ Saraswati shall be entitled for total compensation i.e. Rs.10,69,788/ (9,73,182+19,606+77,000/).
__________________________________________________________________________ MACP No. 532/16, Saraswati & Ors. vs. Ajay Kumar Singh & Ors.; Page 10 of 14 ISSUE NO. 4:
26. Petitioners pursued the case diligently except for a short period from 22.01.2019 till 27.05.2019 for which they shall not be entitled to interest in view of order dated 22.01.2019.
Accordingly, petitioner no.1 shall be entitled for interest @ 8% per annum on the aforesaid award amount from the date of filing of the petition till realization except the aforesaid period. LIABILITY:
27. Now, the question arises as to which of the respondents is liable to pay the compensation amount. Though the insurance company has contractual and statutory liability to indemnify the insured and in this case, it is not disputed that the offending vehicle was insured with respondent no.3/ insurance company at the time of accident, however, insurance company has pleaded that since respondent no.1 was not having valid driving license at the time of accident, insurance company is not liable to indemnify the insured. In support of this plea, R3W1 was examined to show that as per report of ARTO, Ghazipur Ex.R3W1/1, the driving license, details of which were furnished, was not issued by the office of ARTO, Ghazipur. Further, R3W2 deposed that notice under Order 12 Rule 8 CPC was sent to the driver of the offending vehicle but it was not complied with.
28. It is observed that respondent no.1 or the registered owner or the owner in possession have not led any formal __________________________________________________________________________ MACP No. 532/16, Saraswati & Ors. vs. Ajay Kumar Singh & Ors.; Page 11 of 14 evidence to rebut the claim of insurance company that driving license of respondent no.1 was not valid. However, on 20.03.2021, an application was filed by respondent no.1 for leading further evidence to prove that said driving license was genuine and though that application was ordered to be dismissed but respondent no.1 was given a short time to produce the attested copy of record from the concerned licensing authority. Thereafter, respondent no.1 placed on record the computer generated record of the said driving license, which is now marked as Ex.A1, and it has been duly attested by the registration authority, Ballia. It is emphasized by learned counsel for respondent no.1 that record pertaining to DL of respondent no.1 was transferred from District Ghazipur to District Ballia and that is why in the testimony of R3W1, it has come that no record pertaining to DL of R1 was found at ARTO, Ghazipur. This Tribunal finds force in the aforesaid submission as the driving license record produced by respondent no.1 makes it clear that initially the driving license was issued by Ghazipur Authority but later on, probably due to change of address of the license holder, the record was transferred to Ballia. Furthermore, learned counsel for respondent no.1 has demonstrated in Tribunal that said record of driving license of respondent no.1 is available on the government website (https://parivahan.gov.in). In view of this, this Tribunal has no reason to doubt the genuineness of said computerized __________________________________________________________________________ MACP No. 532/16, Saraswati & Ors. vs. Ajay Kumar Singh & Ors.; Page 12 of 14 record pertaining to driving license of respondent no.1.
Accordingly, it is held that respondent no.1 was carrying valid driving license at the time of accident. Therefore, insurance company would be liable to indemnify the insured.
RELIEF:
29. The petitioner No.1/ Saraswati is awarded a compensation of Rs.10,70,000/ (Rs. Ten Lakhs Seventy Thousand Only) (rounded off from Rs.10,69,788/) along with interest @ 8% per annum from the date of filing of the petition till the date of realization except the period from 22.01.2019 to 27.05.2019. The respondent no.3/ insurer shall deposit the aforesaid award amount with this Tribunal within 30 days.
MODE OF DISBURSAL
30. An amount of Rs.2.70 lakhs out of the total award amount of Rs. 10,70,000/ shall be released to the petitioner no.1 immediately and balance amount of Rs.8 lakhs and interest will be secured in the form of FDRs, as per following schedule :
Sl No. Amount (Rs.) Period of FDR
1 1,00,000/ 01 year
2. 1,00,000/ 02 years
3 1,00,000/ 03 years
4. 1,00,000/ 04 years
5. 1,00,000/ 05 years
6. 1,00,000/ 06 years
7. 1,00,000/ 07 years
8. 1,00,000/ 08 years
9. Interest Component 09 years
__________________________________________________________________________ MACP No. 532/16, Saraswati & Ors. vs. Ajay Kumar Singh & Ors.; Page 13 of 14
31. Form IVA in terms of MCTAP is annexed herewith as Annexure A. Digitally signed VIVEK by VIVEK KUMAR KUMAR GULIA Date: 2021.03.27 GULIA 10:32:07 +0530 Announced in the open (Vivek Kumar Gulia) Court on 27.03.2021 Presiding OfficerMACT (East) (Total 14 pages) Karkardooma Courts, Delhi __________________________________________________________________________ MACP No. 532/16, Saraswati & Ors. vs. Ajay Kumar Singh & Ors.; Page 14 of 14