Delhi District Court
Jagdev Prasad Mishra vs Satyam Maheshwari on 14 October, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.341/14
Date of Institution: 28.11.2013
IN THE MATTER OF:
1. Jagdev Prasad Mishra
S/o Shri Jagat Pal Mishra
2. Ashish Kumar
S/o Shri Jagdev Prasad Mishra
Through his father / natural guardian
Both R/o Farm House No.C7
Nathupur Road
Village Rajokari
Delhi - 38.
Permanent R/o Village Varyarpur
Post Taldholi, Tehsil Milkipur
PS Avaniganj
District Faizabad
UP 224121. ...Petitioners
Versus
1. Satyam Maheshwari
S/o Shri Pradeep Kumar Maheshwari
Permanent R/o Mohalla Katoratal
Kashipur
District Udham Singh Nagar
Uttarakhand.
Suit No.341/14
Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 1 of 33
Presently at 278A, Masjid More
South Ex. PartII
New Delhi. (Driver)
2. Shri Pradeep Kumar Maheshwari
(deceased)
S/o Shri S.M. Maheshwari
Through his LRs
i)Smt. Radha Maheshwari (Wife)
ii) Satyam Maheshwari (Son)
iii) Shubham Maheshwari (Son)
All R/o Mohalla Katoratal
Kashipur
District Udham Singh Nagar
Uttarakhand - 263154. (Owner)
3. National Insurance Company Limited
Branch Office: Station Road
Kashipur - 244713. (Insurer) ...Respondents
Final Arguments heard : 09.09.2014 Award reserved for : 14.10.2014 Date of Award : 14.10.2014 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident. Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 2 of 33
2. It is the case of the petitioners that on 31.08.2013, the deceased Smt. Suneeta Devi wife of the petitioner No.1 Shri Jagdev Prasad Mishra was going as pillion rider on motorcycle No.DL6SAB6479 being driven by Shailender Tiwari and they were going from Rajokari to Safdarjung Hospital and when they reached at Airport flyover at 8.30 a.m, and were turning towards Basant Vihar, at that time a bike turned towards Basant Vihar which touched the bike driven by Shailender Tiwari and as a result both Shailender Tiwari and the deceased fell down on the road. It is averred that no sooner did Shailender Tiwari get up and tried to pick up the deceased so that she could stand up, a WagonR car bearing No.UK062225 being driven by its driver/ respondent No.1 in a rash and negligent manner came in high speed and ran through the deceased and hit another car Indigo. The deceased and Shailender Tiwari were removed by the driver/ available person to RR Hospital and subsequently the deceased expired during the treatment. It is stated that if the driver of the vehicle No.UK062225 had been a bit cautious, the accident could have been avoided. It is averred that the accident had been caused purely due to the rash and negligent driving of the offending vehicle by its driver. It is stated that FIR No.281/13 under Sections 279/337 IPC was registered at PS Delhi Cantt. in respect of the accident.
3. It is stated that the deceased Suneeta Devi was 32 years and senior secondary pass and was working as Caretaker in the farm house of Smt. Kiran Singh W/o Shri K.P. Singh R/o Farm No.C7, Nathupur Road, Village Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 3 of 33 Rajokari, Delhi110038 and was getting monthly salary of Rs.11,000/ p.m. It is averred that the deceased was a teetotaler and was possessing very sound health and physique and she was not suffering from any ailments. It is averred that if she had not expired in the accident, she would have survived upto the age of at least 90 to 100 years seeing the longevity of life in the family of the deceased. It is averred that late Smt. Suneeta Devi was an earning member in the family. She was of young age and was having a long life to survive. It is averred that if she had remained alive she would have survived for another about 6065 years. It is averred that due to the untimely death of Smt. Suneeta Devi, the petitioners had been deprived of her income, guidance and love and affection. It is stated that the petitioner No.1 has become a widower at a very young age and he is feeling lonely due to the vacuum created in his life and is weeping day and night which may have adverse effect on his eyes and other important body organs. It is averred that the petitioner No.1 is much worried about rearing up the petitioner No.2 as he is of young age. It is averred that the petitioner No.1 is always worried that who will look after the minor son whenever he starts going for work. It is stated that had the deceased Smt. Suneeta Devi survived, her income would have increased manifold. It is stated that late Smt. Suneeta Devi was very hard working and enthusiastic as she was engaged in caretaking work. Her income had been rising progressively and she was a permanent source of income for her family. It is averred that the petitioner No.1 had spent a sum of Rs.15,000/ on transportation for carrying the dead body of his late wife Smt. Suneeta Devi from Delhi to his Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 4 of 33 native village for her funeral. He had also spent a sum of Rs.50,000/ on funeral and performing last rites of his wife. It is averred that the petitioners are finding it very difficult to pull on day to day life due to nonavailability of financial help. The petitioner No.1 is worrying day and night about his future. It is averred that the accident has brought the petitioners on the brink of hunger and starvation. The petitioner No.1 had lost the company of his wife at a very young age and the petitioner No.2 had lost his mother at a very infant age and for that he was going to suffer throughout his life because he cannot get the love and affection of the mother in his remaining life. It is averred that both the petitioners are suffering a great trauma due to the untimely death of their beloved one and they have lost the noble guidance from Smt. Suneeta Devi who was very much dedicated to her family. It is averred that the petitioner No. 1 has lost the company of his wife at a young age which can never be fulfilled during his life time. It is averred that the respondent No.1 is the driver, respondent No.2 is the owner and the respondent No.3 is the insurance company and hence all the respondents are jointly, severally and vicariously liable to pay the compensation. It is prayed that an amount of Rs.30,00,000/ be awarded as compensation in favour of the petitioners and against the respondents jointly and severally.
4. Respondents No.1 and 2 filed their joint written statement taking the preliminary objections that the petition is a false and concocted one and is not based on true facts as the petitioners have concealed material evidence. It is Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 5 of 33 averred that the petition is not maintainable against the respondent No.1 because the alleged accident if any caused was due to the negligent act of Satyam Maheshwari S/o Shri Pradeep Kumar Maheshwari who was responsible in causing the accident to the deceased with his vehicle bearing No.UK 06 2225 Wagon R car and the respondent No.2 is the father of the respondent No.1 who had expired. It is averred that the compensation claimed by the petitioners lacks merit and is without any basis and is exorbitant. It is averred that the petitioners have with malafide intention impleaded the respondent No.2 with the intention to claim the amount of compensation knowing fully well that the respondent No.2 is the owner and had expired and was not responsible for any violation of the traffic norms and had not committed any offence for implicating the driver or the vehicle in question in the present false criminal case. The averments made in the claim petition were denied. It is averred that a false criminal case vide FIR No.281/13 under Sections 279/337 IPC PS Delhi Cant, New Delhi was registered involving the vehicle belonging to the respondents No.1 and 2 i.e. No.UK062225 WagonR car. The averments regarding the manner of occurrence of the accident were vehemently denied. It is averred that the police officials in collusion with the petitioners and Satyam Maheshwari who was driving the Wagon R car bearing registration No.UK 06 2225 falsely impleaded the vehicle i.e. the motorcycle with the sole motive to save the skin of Satyam Maheshwari who was solely responsible to cause the accident with the vehicle No.UK062225 WagonR car. It is admitted that the accident had occurred involving the vehicle in Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 6 of 33 question but the negligence on the part of the driver/ respondent No.1 working under the respondent No.2 was denied. It is averred that the petitioners had not filed any document with regard to the employment of the deceased as the deceased was completely housewife and to claim the compensation it had been so falsely averred. It is averred that the vehicle of the respondents no. 1 and 2 was insured with the respondent No.3 at the time of the alleged accident and was having all the requisite documents such as driving license, insurance policy to ply the vehicle on the specified route hence if any responsibility of paying compensation to the petitioners accrued it would be of the insurance company i.e. the respondent No.3.
5. Written statement was filed on behalf of the respondent No.3 taking the preliminary objections that the petition does not disclose any cause of action against the respondent No.3. The respondent No.3 denied all liabilities as the insurer since the insured vehicle No.UK 06P 2225 was being driven by a person without permission or authority of the insured and the vehicle was used contrary to the terms of the insurance policy, RC and was being driven by its driver without holding a proper and valid driving license. It is averred that the owner of the vehicle having knowledge about not having a valid DL by the driver of the vehicle had willfully breached the terms and conditions of the policy. It is averred that the petition is bad for nonjoinder of necessary parties since the owner, driver and insurer of the vehicle No.DL 4SAQ 0892 involved in the accident were necessary parties. It is averred that the accident, if any, Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 7 of 33 was caused due to the rash and negligent act of the driver of the motorcycle No.DL 4SAQ 0892. It is averred that the motorcycle No.DL 4SAQ 0892 hit the deceased due to which the deceased fell on the road or at least both the vehicles had contributed to the accident. The averments made in the claim petition were denied. It is stated that the vehicle No.UK 06P 2225 was insured in the name of Shri Pradeep Kumar Maheshwari vide policy No. 461801/31/12/6100003786 valid for the period from 30.10.2012 to 29.10.2013. It is averred that the claim of the petitioners is false and vexatious to the petitioners' own knowledge and the amount claimed is totally vague, illusory and highly excessive in the given circumstances. It is averred that the accident was caused due to the negligent driving of motorcycle No.DL4SAQ0892 and the driver of the motorcycle was not holding a valid and effective driving license at the time of the accident which caused the accident.
6. Detailed Accident Report was filed by the IO on 28.11.2013 and the claim petition was also filed the same day. An application was filed under order 22 rule 3 CPC on behalf of the petitioners to bring on record the LRs of the respondent No.2 which was allowed vide order dated 29.3.2014. It was stated that no fresh written statement was to be filed on behalf of the LRs. From the pleadings of the parties, the following issues were framed vide order dated 29.03.2014 :
1. Whether the deceased sustained fatal injuries in the accident which occurred on 31.08.2013 at Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 8 of 33 about 8.30 am at Airport Flyover, caused by rash and negligent driving of vehicle No.UK 06 2225 driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP
2. Whether the LRs of deceased are entitled for compensation? If so, to what amount and from whom?
3. Relief.
7. On behalf of the petitioners the petitioner No.1 Shri Jagdev Prasad Mishra entered in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. Copy of the election I card of the petitioner No.1 is Ex.PW1/1, copy of I card issued by the school of the petitioner No.2 is Ex.PW1/2, copy of election I card of the deceased is Ex.PW1/3, copy of UID of deceased is Ex.PW1/4, copy of intermediate examination certificate of deceased is Ex.PW1/5, copy of mark sheet of intermediate examination certificate of deceased is Ex.PW1/6, copy of matriculation certificate of deceased is Ex.PW1/7, copy of mark sheet of secondary school is Ex.PW1/8 (colly), copy of PAN Card of deceased is Ex.PW1/9 (colly), copy of transportation is Ex.PW1/10 and DAR is Ex.PW1/11. He stated that he had inadvertently mentioned the registration number of the offending vehicle as UK 06 2225 in place of UK 06P 2225 at all the places in the petition.
8. Shri Shailender Tiwari was examined as PW2 and he led his evidence by way of affidavit which is Ex.PW2/A. He stated that he is an eye witness in Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 9 of 33 the case FIR No.281/2013 under Sections 279/304A IPC, PS Delhi Cantt. He stated that he is engaged in servicing RO and on 31.08.2013, he was going from Rajokari to Safdarjung Hospital by his motorcycle No.DLSAB6479. He stated that the deceased sister in law Smt. Suneeta Mishra was going with him as pillion rider and when they reached at Airport flyover at 8.30 a.m, and were turning towards Basant Vihar, at that time a bike turned towards Basant Vihar which touched the bike driven by PW2 and as a result both PW2 and the deceased fell down on the road. He stated that no sooner did he get up and tried to pick up the deceased so that she could stand up, a WagonR car bearing No.UK06P2225 being driven by its driver/ respondent No.1 in a rash and negligent manner came in high speed. PW2 pointed out the said car for stopping but the driver of the car did not stop and both the right hand side tyres of the car ran through the deceased and further hit another black colour Indigo car from the backside. The deceased and PW2 were removed by the driver/ available person to RR Hospital and subsequently the deceased expired during the treatment. He stated that if the driver of the vehicle No.UK062225 had been a bit cautious, the accident could have been avoided. He stated that the accident had been caused purely due to the rash and negligent driving of the offending vehicle by its driver. PE was closed on 22.5.2014. It was stated by the learned counsels for the respondents that no RE was to be led. RE was closed on 15.7.2014.
Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 10 of 33
9. I have heard the Learned Counsel for the petitioners as well as the Learned Counsels for the respondents and perused the record. The petitioner No.1 was also examined on 15.7.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
10. My findings on the specific issues are as under:
Issue No. 1
11. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that the deceased sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 11 of 33 under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the 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 injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
12. The case of the petitioners is that on 31.08.2013, the deceased Smt. Suneeta Devi wife of the petitioner No.1 Shri Jagdev Prasad Mishra was going as pillion rider on motorcycle No.DL6SAB6479 being driven by Shailender Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 12 of 33 Tiwari and they were going from Rajokari to Safdarjung Hospital and when they reached at Airport flyover at 8.30 a.m, and were turning towards Basant Vihar, at that time a bike turned towards Basant Vihar which touched the bike driven by Shailender Tiwari and as a result both Shailender Tiwari and the deceased fell down on the road. It was averred that no sooner did Shailender Tiwari get up and tried to pick up the deceased so that she could stand up, a WagonR car bearing No.UK062225 being driven by its driver/ respondent No.1 in a rash and negligent manner came in high speed and ran through the deceased and hit another car Indigo. The deceased and Shailender Tiwari were removed by the driver/ available person to RR Hospital and subsequently the deceased expired during the treatment. It was stated that if the driver of the vehicle No.UK062225 had been a bit cautious, the accident could have been avoided. It was averred that the accident had been caused purely due to the rash and negligent driving of the offending vehicle by its driver. It was stated that FIR No.281/13 under Sections 279/337 IPC was registered at PS Delhi Cantt. in respect of the accident. In paras 2 and 3 of his affidavit Ex.PW1/A the petitioner No.1 had reiterated the mode and manner of the accident as stated in the claim petition. Likewise in paras 2 and 3 of his affidavit Ex.PW2/A PW2 had reiterated the mode and manner of the accident.
13. The IO had filed the DAR on which reliance has been placed by the petitioners comprising of the criminal record consisting of copy of charge sheet, copy of tehrir, copy of FIR No.281/2013 under sections 279/337 IPC, PS Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 13 of 33 Delhi Cantt, copy of site plan, copy of DDs, copy of seizure memos, copy of mechanical inspection report of the offending vehicle and of the two motorcycles, copy of arrest memo, copy of DL of the respondent No.1, copy of RC of the offending vehicle, copy of insurance policy of the offending vehicle and of the motorcycle No.DL4SAQ0892 with its verification, copy of MLC and post mortem report of the deceased and other documents, copy of identification statements in respect of the deceased and handing over memo of the dead body, copy of order on the application for superdari and superdarinama, copies of statements under Section 161 Cr.P.C., verification report of the DL of the respondent No.1 and of the driver of the motorcycle No.DL4SAQ0892 and verification report in respect of the RC of the offending vehicle and of the motorcycle No.DL4SAQ0892. As per the FIR No.281/2013 under sections 279/337 IPC, PS Delhi Cantt. the case was registered on the basis of the complaint of Shri Shailendra Tiwari who has been examined as PW2 wherein he has stated the manner in which the accident took place. As per the charge sheet respondent No.1 has been charge sheeted for the offence under sections 279/304A IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident.
Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 14 of 33
14. The respondents No.1 and 2 filed their written statement (which was also adopted on behalf of the LRs of the respondent No.2) averring that the alleged accident if any caused was due to the negligent act of Satyam Maheshwari S/o Shri Pradeep Kumar Maheshwari who was responsible in causing the accident to the deceased with his vehicle bearing No.UK 06 2225 Wagon R car and the respondent No.2 is the father of the respondent No.1 who had expired. It was averred that the petitioners had with malafide intention impleaded the respondent No.2 with the intention to claim the amount of compensation knowing fully well that the respondent No.2 is the owner and had expired and was not responsible for any violation of the traffic norms and had not committed any offence for implicating the driver or the vehicle in question in the present false criminal case. It was averred that a false criminal case vide FIR No.281/13 under Sections 279/337 IPC PS Delhi Cant, New Delhi was registered involving the vehicle belonging to the respondents No.1 and 2 i.e. No.UK062225 WagonR car. The averments regarding the manner of occurrence of the accident were vehemently denied. It was averred that the police officials in collusion with the petitioners and Satyam Maheshwari who was driving the Wagon R car bearing registration No.UK 06 2225 falsely impleaded the vehicle i.e. the motorcycle with the sole motive to save the skin of Satyam Maheshwari who was solely responsible to cause the accident with the vehicle No.UK062225 WagonR car. It was admitted that the accident had occurred involving the vehicle in question but the negligence on the part of the driver/ respondent No.1 working under the respondent No.2 was denied. It Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 15 of 33 is thus seen that though the respondents No.1 and 2 in their written statement had stated that a false criminal case vide FIR No.281/13 under Sections 279/337 IPC PS Delhi Cant, New Delhi was registered involving the vehicle belonging to the respondents No.1 and 2 i.e. No.UK062225 WagonR car and the averments regarding the manner of occurrence of the accident were vehemently denied and it was stated that the police officials in collusion with the petitioners and Satyam Maheshwari who was driving the Wagon R car bearing registration No.UK 06 2225 falsely impleaded the vehicle i.e. the motorcycle with the sole motive to save the skin of Satyam Maheshwari who was solely responsible to cause the accident with the vehicle No.UK062225 WagonR car they had admitted that the accident had occurred involving the vehicle in question but the negligence on the part of the driver/ respondent No. 1 working under the respondent No.2 was denied and they had also stated that the respondent No.1 who is also a party as LR of the respondent No.2 had colluded with the petitioners and the police officials and was solely responsible for causing the accident. Further PW1 and PW2 were not even cross examined on behalf of the respondents No.1 and 2.
15. During crossexamination by the learned counsel for the insurance company - respondent No.3 PW1 stated that he is not an eye witness to the accident. Thus PW1 was not an eye witness to the accident. The petitioners had produced Shri Shailender Tiwari in the witness box who had stated that he was an eye witness and with whom the deceased was travelling at the time of Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 16 of 33 the accident. During crossexamination by the learned counsel for the insurance company - respondent No.3 PW2 stated that he has DL with him and the same is Ex.PW2/D1. He denied the suggestion that the said license was fake or that he did not know how to drive a motorcycle. He stated that another motorcycle was also involved in the accident which hit his motorcycle. He did not remember the registration number of the said motorcycle. He stated that the car hit his motorcycle from behind. He stated that the police had recorded his statement. He stated that he had informed the police that the car had hit his motorcycle. He stated that he had signed the statement recorded by the police after going through the same. He admitted that in his statement at page 8 in DAR to the police it was not mentioned that the car had hit his motorcycle. He stated that he was driving the motorcycle at the speed of 2530 km/hr. He stated that the other motorcycle which hit his motorcycle overtook his motorcycle but he could not tell the speed of the said motorcycle. He stated that the car came from behind his motorcycle. He denied the suggestion that he along with the deceased fell on the road suddenly and the car driver tried to stop but he could not stop. He denied the suggestion that the accident took place due to his negligence as well as the negligence of the other motorcycle driver. Thus PW2 stated that he has DL with him and the same is Ex.PW2/D1 and nothing has been produced to show that the said license was fake or that PW2 did not know how to drive a motorcycle. PW2 reiterated that another motorcycle was also involved in the accident which hit his motorcycle though he did not remember the registration number of the said motorcycle. It may be Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 17 of 33 mentioned that the owner, driver and insurer of the said motorcycle have not been joined as parties to the present petition and PW2 did not even remember the number of the said motorcycle. Even otherwise the deceased was only a pillion rider and if it is contended that it is a case of composite negligence, the law is well settled that the claimants can choose the insurer and insured in respect of the vehicles as tort feasors to recover the compensation amount. In Om Wati & Ors. v. Mohd. Din & Ors. 2001 91 DLT 184 (decided by DB of Hon'ble High Court of Delhi) it was observed:
"Coming to the question of 'apportionment' it seems to us that First Appellate Court was in error in holding that claimants would have to forego 30% share of their awarded compensation in favour of the joint tortfeasors of the truck present before the Court as they had failed to implead tort feasors of the car as partyrespondents in their claim suits. This is because the accident could not be wholly treated to be the result of contributory negligence. Even, if it was assumed that the drivers of the two vehicles contributed to the accident in some measure, the other two deceased who were travelling in the car could not be held responsible for any such negligence. Therefore, it was a case of composite negligence in their case. The principle of composite negligence is that where more than one person are responsible for commission of the wrong, the person wronged has a choice of proceedings against all or any one or more. Any one of the wrong doer is liable for the whole damage if it is otherwise made out. In other words the liability of two sets of tortfeasors becomes both joint and several."Suit No.341/14
Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 18 of 33 Similar is the position in the present case wherein the deceased was travelling as a pillion rider and the motorcycle on which she was travelling was hit by a motorcycle and then a car ran through the deceased. This judgment was referred to by the Hon'ble High Court of Delhi in Raj Pal Kaur & Ors. v. Pawan Gir & Ors. CM(C)1187/2013 decided on 30.10.2013 and it was held that the FIR was registered against the truck driver and the petitioners/ claimants had rightly sought relief against the said vehicle. In the present case as well the FIR had been registered against the respondent No.1, the driver of the offending car and the present petition has been filed seeking relief against the said car.
16. Further during crossexamination PW2 stated that the car hit his motorcycle from behind. He stated that the police had recorded his statement and that he had informed the police that the car had hit his motorcycle. He also stated that he had signed the statement recorded by the police after going through the same but he admitted that in his statement at page 8 in DAR to the police it was not mentioned that the car had hit his motorcycle. However he had stated in the complaint on which the FIR was lodged that both the right side tyres had gone over the deceased. As such nothing much turns on the fact that it was not mentioned in the statement given by PW2 to the police that the car had hit the motorcycle when it was clearly stated that the car had hit the deceased. PW2 stated that he was driving the motorcycle at the speed of 2530 km/hr. He stated that the other motorcycle which hit his motorcycle Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 19 of 33 overtook his motorcycle but he could not tell the speed of the said motorcycle. He stated that the car came from behind his motorcycle. A suggestion was put to PW2 that he along with the deceased fell on the road suddenly and the car driver tried to stop but he could not stop which he denied but even if the contention of the respondent No.3 were to be accepted it would imply that the car was being driven at a high speed by the respondent No.1 and as such he could not control the car which is also indicated by the fact that it went on to hit another Indigo car. Moreover the respondents No.1 and 2 had admitted the occurrence of the accident. The respondents have also not adduced any evidence to dispute the version put forth by the petitioners or in the criminal record or to prove any other version of the accident. The criminal record shows that charge sheet has already been filed against the respondent No.1 for the offence under Sections 279/304A IPC. The fact that the charge sheet has been filed against the respondent No.1 and he is facing trial is not disputed. The respondents have not produced any evidence to disprove the particulars of the accident or the involvement of vehicle No.UK06P2225. Thus in view of the testimony of the witnesses and documents on record which have remained unrebutted, the negligence of respondent No.1 has been prima facie proved.
17. It was stated that the deceased and Shailender Tiwari were removed by the driver/ available person to RR Hospital and subsequently the deceased expired during the treatment. The post mortem report is also on record as per which the cause of death was haemmorhagic shock due to polytrauma in road Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 20 of 33 traffic accident. Thus it stands established that the deceased had sustained injuries in the alleged accident due to which she died. As such issue No.1 is decided in favour of the petitioners and against the respondents. ISSUE No.2
18. Since issue No.1 has been decided in favour of the petitioners they would be entitled to compensation. The petitioners are the legal representatives of the deceased being the husband and one minor son of the deceased Late Smt. Sunita Mishra. PW1 was crossexamined on the point of dependency and during crossexamination by the learned counsel for the insurance company - respondent No.3 PW1 stated that he is 34 years of age. He stated that he was employed with Shri K.P. Singh at Vasant Vihar, New Delhi, as a field worker. He stated that he was earning Rs.11,500/ per month. He stated that he is not an income tax payee. He stated that he is also holding a bank account in SBI at Village Barihar Pur, District Faizabad. He stated that he was operating his bank account from Delhi itself. He stated that he had not produced his bank account statement in the court but he could produce the same. He stated that he had not remarried till date. Thus PW1 stated that he is 34 years of age and that he was employed with Shri K.P. Singh at Vasant Vihar, New Delhi, as a field worker. He stated that he was earning Rs.11,500/ per month though he was not an income tax payee. He was crossexamined on having a bank account but nothing much turns on the same. He stated that Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 21 of 33 he had not remarried till date. During examination by the Tribunal the petitioner No.1 Shri Jagdev Prasad Mishra stated that he is 34 years old at present. He stated that at the time of the accident he was doing a job and was earning Rs. 11,000/ per month. He stated that at present he was not doing anything. He stated that his wife Sunita Mishra was working as Caretaker and was earning Rs.11,000/ p.m. He stated that he had one child Ashish who is aged about 11 years at present. Thus at the time of the accident the petitioner No.1 was working and as such he cannot be regarded as dependent on the deceased. However the petitioner No.2 being a minor child would be regarded as dependent on the deceased.
19. The petitioners have claimed loss of dependency on the basis that the deceased Suneeta Devi was 32 years and senior secondary pass and was working as Caretaker in the farm house of Smt. Kiran Singh W/o Shri K.P. Singh R/o Farm No.C7, Nathupur Road, Village Rajokari, Delhi110038 and was getting monthly salary of Rs.11,000/ p.m. It was averred that the deceased was a teetotaler and was possessing very sound health and physique and she was not suffering from any ailments. It was averred that if she had not expired in the accident, she would have survived upto the age of at least 90 to 100 years seeing the longevity of life in the family of the deceased. It was averred that late Smt. Suneeta Devi was an earning member in the family. She was of young age and was having a long life to survive. It was averred that if she had remained alive she would have survived for Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 22 of 33 another about 6065 years. It was averred that due to the untimely death of Smt. Suneeta Devi, the petitioners had been deprived of her income, guidance and love and affection. It was stated that the petitioner No.1 has become a widower at a very young age and he was feeling lonely due to the vacuum created in his life and was weeping day and night which may have adverse effect on his eyes and other important body organs. It was averred that the petitioner No.1 was much worried about rearing up the petitioner No.2 as he was of young age. It was stated that had the deceased Smt. Suneeta Devi survived, her income would have increased manifold. Late Smt. Suneeta Devi was very hard working and enthusiastic as she was engaged in caretaking work and her income had been rising progressively and she was a permanent source of income for her family. It was averred that the petitioners were finding it very difficult to pull on day to day life due to nonavailability of financial help. The petitioner No.1 was worrying day and night about his future. It was averred that the accident had brought the petitioners on the brink of hunger and starvation. The petitioner No.1 had lost the company of his wife at a very young age and the petitioner No.2 had lost his mother at a very infant age and for that he was going to suffer throughout his life because he could not get the love and affection of the mother in his remaining life. It was averred that both the petitioners were suffering a great trauma due to the untimely death of their beloved one and they had lost the noble guidance from Smt. Suneeta Devi who was very much dedicated to her family. The petitioner No.1 in paras 4 to 11 of his affidavit Ex.PW1/A had deposed to that effect. Copy of intermediate Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 23 of 33 examination certificate of deceased is Ex.PW1/5, copy of mark sheet of intermediate examination certificate of deceased is Ex.PW1/6, copy of matriculation certificate of deceased is Ex.PW1/7, copy of mark sheet of secondary school is Ex.PW1/8 (colly) and copy of PAN Card of deceased is Ex.PW1/9 (colly). However the petitioners have not placed on record any document to show that the deceased was working as a Caretaker or to show that she was earning Rs.11,000/ per month.
20. During crossexamination by the learned counsel for the insurance company - respondent No.3 PW1 stated that his wife was employed with Smt. Kiran Singh for her farm house as a caretaker. He stated that she was getting her salary as cash. No receipt was being signed by her employer. No appointment letter was issued to her. He stated that she was operating a bank account with Corporation Bank, Rajokari. He stated that he did not know the account number of her bank. He stated that he had the passbook of her account and he could produce the same. He denied the suggestion that his wife was not working or that she was not earning. He stated that his wife was not an income tax payee. He denied the suggestion that his wife was not matriculate or that the documents filed by him were forged and fabricated. Thus PW1 reiterated during crossexamination that his wife was employed with Smt. Kiran Singh for her farm house as a caretaker. He was crossexamined on how his wife was receiving salary and he stated that she was getting her salary as cash. It is pertinent that PW1 stated that no receipt was being signed Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 24 of 33 by her employer and no appointment letter was issued to her. He stated that she was operating a bank account with Corporation Bank, Rajokari though he did not know the account number of her bank. He stated that he had the passbook of her account and he could produce the same. However nothing much turns on the same as he had stated that his wife was getting her salary in cash. He also stated that his wife was not an income tax payee. Thus the petitioners have not placed on record any document to show that the deceased was indeed working as a Caretaker nor produced any witness who could establish the same or that she was earning Rs.11,000/ p.m.
21. In the absence of any proof of income of the deceased the same would have to be computed on the basis of minimum wages prevalent on the date of the accident i.e. 31.8.2013. The petitioners had produced the educational certificates of the deceased which show that she had done matriculation but there is nothing to show that she had done graduation. As such the minimum wages of a matriculate would be considered which were Rs.9,386/ p.m. Thus the income of the deceased for the computation of loss of dependency would be Rs.9,386/ per month.
22. It is the case of the petitioners that the deceased was 32 years of age at the time of the accident and it was so stated in the claim petition. A copy of the High School Certificate of the deceased is Ex.PW1/7 which shows the date of birth of the deceased to be 3.5.1981. As such the deceased would have been Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 25 of 33 more than 32 years old on the date of the accident i.e. 31.8.2013. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case the multiplier of 16 applies for calculating the loss of income where the age of the deceased is 31 to 35 years.
23. As observed above the only dependent on the deceased is her minor son. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case as the number of dependent was 1 there would be 1/3rd deduction towards personal and living expenses of the deceased. As regards the future prospects in Rajesh and Ors. v Rajbir Singh and Ors. 2013 (6) SCALE 563 the Hon'ble Supreme Court held as under:
"11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years."
12.In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 26 of 33 the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter." Thus the petitioners would be entitled to addition of 50% of the income of the deceased towards future prospects as the deceased was less than 40 years of age.
Accordingly the loss of dependency as per the monthly income i.e. Rs.9,386/ is calculated as under :
Rs.9,386/ + Rs.4,693/ (50% future prospects) = Rs.14,079/ X 12 (annual) X 16 (multiplier) - 9,01,056/ (1/3rd towards personal expenses) = Rs.
18,02,112/ (rounded off to Rs.18,02,000/).
24. The petitioners are also entitled to compensation for loss of love and affection, loss of consortium, loss of estate and funeral expenses. It was stated that the petitioners had spent Rs.15,000/ on transportation for carrying the dead body of Smt. Suneeta Devi from Delhi to the native village for her funeral and Rs.50,000/ on funeral and performing last rites. During cross examination by the learned counsel for the insurance company - respondent No.3 PW1 denied the suggestion that he had not spent Rs.15,000/ on transportation, Rs.50,000/ on funeral as alleged by him in the affidavit. PW1 Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 27 of 33 had filed a bill in respect of an ambulance which is Ex.PW1/10 which shows total expenditure of Rs.20,956/. However the same has not been got proved and appears to be on the higher side. There is no document to show expenditure of Rs.50,000/ on the last rites of the deceased.
The total compensation is determined as under:
Loss of dependency : Rs.18,02,000/
Love and affection : Rs.50,000/
Loss of Consortium : Rs.50,000/
Loss of Estate : Rs.10,000/
Funeral expenses : Rs.20,000/
Total : Rs.19,32,000/
Thus, the total compensation would amount to Rs.19,32,000/. RELIEF
25. The petitioners are awarded a sum of Rs.19,32,000/ (Rs.Nineteen Lacs Thirty Two Thousand only) along with interest @ 9% per annum from the date of filing of the claim petition till its realization including, interim award, if any already passed against the respondents and in favour of the petitioners. The petitioner No.2 Ashish Kumar would be entitled to 80% share in the awarded Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 28 of 33 amount and the petitioner No.1 Shri Jagdev Prasad Mishra would be entitled to 20% share in the awarded amount.
26. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash v. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgment the award amount is to be disbursed as follows:
a) The entire share of the petitioner No.2 be kept in FDR in UCO Bank, Patiala House Court till he attains majority and for 3 years thereafter and 40% of the share of the petitioner No.1 be released to him by transferring it into his savings account and remaining amount out of his share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
1. Fixed deposit in respect of 20% for a period of one year.
2. Fixed deposit in respect of 20% for a period of two years.
3. Fixed deposit in respect of 20% for a period of three years.
b)The respondent No.3 is directed to deposit the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 29 of 33 A/c Jagdev Prasad Mishra and Ashish Kumar within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondent shall be liable to pay further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released to the petitioner No.1.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the saving accounts of the petitioner No.1.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner No.1 after due verification and the bank shall issue photo identity card to the petitioner No.1 to facilitate his identity.
g) No cheque book shall be issued to the petitioner No.1 without the permission of the court.
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioner No.1 Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 30 of 33 along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
i) The original fixed deposit receipts shall be handed over to the petitioner No.1 on the expiry of the period of the fixed deposit receipts.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
k) On the request of the petitioners, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioners.
l) The petitioners shall furnish all the relevant documents for opening of the saving bank account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
27. The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 31 of 33 Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount. APPORTIONMENT OF LIABILITY
28. The respondent No.1 is the driver of the offending vehicle, the respondent No.2 who was the owner of the offending vehicle has expired and is represented through LRs and the respondent No.3 is the insurer in respect of the offending vehicle. No evidence has been led on behalf of the respondents. Respondent No.3 i.e. National Insurance Company Limited being the insurance company in its written statement had stated that the vehicle No.UK 06P 2225 was insured in the name of Shri Pradeep Kumar Maheshwari vide policy No.461801/31/12/6100003786 valid for the period from 30.10.2012 to 29.10.2013. There is no evidence on behalf of the respondent No.3 to show that there was any violation of the rules and terms of policy by the driver and owner of the offending vehicle. Hence, the respondent No.3 being the insurance company in respect of the offending vehicle is liable to pay the compensation. The respondent No.3 being the insurer is directed to deposit the award amount within 30 days with interest at the rate of 9% from the date of filing of the claim petition till its realization in UCO Bank, Patiala House Courts, New Delhi failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
Suit No.341/14 Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 32 of 33
29. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The respondent No.3 shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 16.01.2015.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House. File be consigned to Record Room.
Announced in open court
on this 14th day of October, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No.341/14
Jagdev Prasad Mishra Vs. & Satyam Maheshwari & Ors. Page no. 33 of 33