Delhi District Court
Amit Kanojia vs Ram Singh on 31 July, 2018
IN THE COURT OF SH SANJAY SHARMA, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL : EAST DISTRICT :
KARKARDOOMA COURTS : DELHI
Suit No.: 684/16
Unique Case I.D No.: MACT/9653/2016
1. Amit Kanojia
S/o Sh. Gopal Dass
..... Husband
2. Rishika
D/o Sh. Amit Kanojia
..... Daughter
3. Saanvi
D/o Sh. Amit Kanojia
..... Daughter
Residents of:
R/o H. No. 95/96,
S.F. West Guru Angad Nagar,
Laxmi Nagar, Delhi-110092
4. Narain Dass
S/o Late Janji Ram
..... Father
5. Smt. Darshana Devi
W/o Sh. Narain Dass
..... Mother
Residents of:
R/o 146, Janta Flats,
Vivek Vihar, Delhi-110095
..... Petitioners
VERSUS
1. Ram Singh
S/o Sh. Attar Singh
R/o Vill. Mathurapur, PS Patvahi,
Teh. Shahbad, Distt. Tampur, U.P.
..... Driver
2. Mohit Maini
S/o Sh. Naresh Kumar Maini
R/o Langar Khana Street, PS Kotwali,
Teh. Sadar, Distt. Rampur, U.P.
..... Owner
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3. National Insurance Co. Ltd.
124, Level-4, Jeevan Bharti Building Tower-2,
Connaught Place, New Delhi-110001
..... Insurer
..... Respondents
Date of Institution : 17.11.2016
Date of Reserving : 05.07.2018
Date of Judgment : 31.07.2018
JUDGMENT
PLEADINGS:
1. Mrs. Meenakshi Bala, (the deceased), 35 years, born on 23.01.1981, working as AGM with Dr. Oetker India Pvt. Ltd., died due to cerebral injuries suffered in a motor vehicular accident that occurred at 2.30 p.m. on 15.06.2016 on National High-way bypass, near Alipur Januvi, Rampur, U.P. while she was traveling with the petitioners in car described as WagonR bearing registration No. DL 8C NB 5776 (the car) from Delhi to Nainital, driven by Mr. Amit Kanojia / the petitioner No. 1, when the medium goods vehicle described as truck (open body) bearing registration No. UP 22T 0809 (the truck) driven by the respondent No. 1 in rash and negligent manner had hit the car.
Due to the impact, the car fell into a pit leading to the death of the deceased and injuries to the petitioners. The said accident was the subject matter of investigation of criminal case vide case crime No. 354/16 under section 279/304A/337/338/ 427 of the Indian Penal Code, 1860 (IPC) registered at PS Civil Lines, Rampur, U.P. The petitioners being husband, daughters and parents of the deceased instituted an accident claim case under section 166 of the Motor Vehicles Act, 1988 (MV Act) for compensation impleading the driver, owner and insurer of the truck as the respondents.
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2. The respondent No. 1 and 2, in their separate written statements, denied that the respondent No. 1 was driving the truck in a rash and negligent manner. They contended that the respondent No. 1 was driving the truck with due care and caution.
3. The respondent No. 3 / insurer, in its written statement, conceded that the truck was insured with it in the name of the respondent No. 2 for the period from 24.11.2015 to 23.11.2016. It contended that the petitioner No. 1 was driving the car in a negligent manner in high-speed. It contended that its liability is subject to the driving license of the driver of the truck, registration certificate, fitness and permit. ISSUES:
4. On the pleadings, following issues were framed:
(i) Whether on 15.06.2016 at 2.30 p.m. near NH-24, at Rampur bypass, near Ali Nagar Januvi, Rampur, U.P. in a road accident in which Meenakshi Bala died, had taken place due to rash and negligent driving of offending vehicle bearing registration No. UP 22T 0809 (Truck) driven by the respondent No. 1?
(OPP)
(ii) Whether Amit Kanojia / husband of the deceased was driving WagonR Car bearing registration No. DL 8C NB 5776 in a rash and negligent manner?
(OPR3)
(iii) Whether the offending vehicle bearing registration No. UP 22T 0809 was being used on public road in breach of condition of insurance policy?
(OPR3)
(iv) Whether the petitioners are entitled to the compensation as prayed for, if so, to what amount and from whom?
(OPP) Suit No.: 684/2016 Amit Kanojia & Ors. vs Ram Singh & Ors. 3 of 15
(v) Whether the petitioners are entitled to interest on the award amount, if so, to what rate of interest and for which period?
(OPP)
(vi) Relief.
EVIDENCE:
5. Mr. Amit Kanojia, husband of the deceased appeared as PW-1. He filed evidence by way of affidavit Ex.PW1/A. He relied on the claim petition Ex.PW1/1, copy of academic certificates of the deceased Ex.PW1/2 (colly), increment letter dated 28.04.2016 of the deceased Ex.PW1/3 (colly), income tax return for the assessment years 2013-14, 2014-15 and 2015-16 alongwith Form 16 of the deceased Ex.PW1/4 (colly), death certificate Ex.PW1/5, copy of driving license and election I-card of the deceased and aadhaar card of the petitioner No. 4 and 5 Ex.PW1/6 (colly), copy of driving license of the respondent No. 1 Mark 'A', copy of registration certificate of the offending vehicle Mark 'B', copy of insurance policy Mark 'C', original ambulance bills Ex.PW1/7 (colly), certified copy of FIR, report under section 173 Cr.P.C., certified copy of post-mortem report, site plan Ex.PW1/8 (colly), claim petition No. 683/16 Ex.PW1/9, copy of voter I-card, PAN card and driving license of Amit Kanojia Ex.PW1/10 (colly), copy of academic certificates of Amit Kanojia Ex.PW1/11 (colly), income tax return for the assessment year 2014-15, 2015-16 and 2016-17 of Mr. Amit Kanojia Ex.PW1/12 (colly), monthly income / annual income certificate of Mr. Amit Kanojia Ex.PW1/13, appreciation award Ex.PW1/14, increment letter of Mr. Amit Kanojia Ex.PW1/15, discharge summary and original medical bills of Mr. Amit Suit No.: 684/2016 Amit Kanojia & Ors. vs Ram Singh & Ors. 4 of 15 Kanojia Ex.PW1/16 (colly), certificate issued by doctors of MAX Hospital in respect of right upper limb Ex.PW1/17, certificate issued by doctors of Vision Plus Eye Centre, Noida Ex.PW1/18, claim petition No. 685/16 Ex.PW1/19, copy of I-card of Rishika Ex.PW1/19A and original medical bills alongwith discharge summary of Rishika Ex.PW1/20 (colly).
6. PW-2 Jitender Meena, Stenographer, Income Tax Department, Ward No. 70(2), Civic Centre, New Delhi brought the income tax returns pertaining to Ms. Meenakshi Bala and Mr. Amit Kanojia. He proved the income tax return pertaining to Ms. Meenakshi Bala for the assessment years 2013-14 Ex.PW2/1 (colly), 2014-15 Ex.PW2/2 (colly) and 2015-16 Ex.PW2/3 (colly). He also proved the income tax return pertaining to Mr. Amit Kanojia for the assessment years 2013- 14 Ex.PW2/4 (colly), 2014-15 Ex.PW2/5 (colly) and 2015-16 Ex.PW2/6 (colly).
7. PW-3 Nidhi Dixit, Manager (HR), Dr. Oetker India Pvt.
Ltd., F-4, Ground Floor, Okhla Industrial Area, Phase-I, Delhi proved authority letters Ex.PW3/1 and Ex.PW3/2, salary certificate of Ms. Meenakshi Bala Ex.PW3/3, increment letter Ex.PW3/4 (already Ex.PW1/3), letter of participation Ex.PW3/5 and service record Ex.PW3/6 (colly). She also proved salary certificate of Mr. Amit Kanojia Ex.PW3/7 (already Ex.PW1/13), increment letter already Ex.PW1/15, letter of appreciation Ex.PW3/9 (already Ex.PW1/14) and service record Ex.PW3/10 (colly).
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8. PW-4 Saurav Kaushik, Medical Record Keeper, Sri Sai Hospital, Delhi Road, Moradabad, U.P. proved authority letter Ex.PW4/1, medical record of Mr. Amit Kanojia Ex.PW4/2 and baby Rishika Ex.PW4/3, copy of MLC of Mr. Amit Kanojia and baby Rishika Ex.PW4/4 and Ex.PW4/5 respectively.
9. PW-5 H.K. Mittra, Orthopaedics Surgeon, District Hospital, Rampur proved admission file of Mr. Amit Kanojia and Rishika Ex.PW5/1 and Ex.PW5/2 respectively.
10. PW-6 SI Desh Pal Singh, PS Bhot, District Rampur, U.P. was Investigating Officer of the criminal case. He placed a copy of the case diary Mark 'X' (colly, 73 pages).
11. PW-7 Dr. Ajay Aurora, Director, Vision Plus Eye Centre, Kisan Tower (FF & SF), Gold Marg, Hoshiarpur, Sector- 51, Noida proved treatment record of Mr. Amit Kanojia Ex.PW7/A (colly).
12. PW-8 Akash Singh, Medical Record Technician, MAX Hospital, Patparganj, Delhi proved the treatment record of Mr. Amit Kanojia and Rishika Ex.PW8/A and Ex.PW8/B respectively, duplicate impatient bill of Mr. Amit Kanojia and Rishika Ex.PW8/C and Ex.PW8/D respectively. FINAL ARGUMENTS:
13. I have heard arguments of Sh. Krishan Kumar, Advocate for the petitioners and Ms. Sarika Goel, Advocate for the respondent No. 3 / insurer and perused the evidence, oral and documentary, on the file of the tribunal.
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14. In an action instituted on the principle of fault liability under section 166 of the MV Act, the petitioners must prove involvement of the offending vehicle, and rash and negligent driving thereof. Standard of proof is not that stringent as that applied in criminal cases that is proof beyond reasonable doubts. In claims founded on tort liability, the principle of preponderance of probabilities applies.
15. The petitioners, in order to prove rash and negligent driving of the truck, examined PW-1 Amit Kanojia. He deposed, on the strength of affidavit Ex.PW1/A, the sequence of events leading to the accident. He deposed that on 15.06.2016, he alongwith his wife (the deceased), minor daughters namely Rishika and Saanvi and parents-in-laws was going in WagonR bearing registration No. DL 8C NB 5776 from Delhi to Nainital. He categorically deposed that at about 2.30 p.m., when they reached near NH-24 at Rampur Bypass, near Ali Nagar, Januvi, Rampur, U.P., a truck bearing registration No. UP 22T 0809 driven by the respondent No. 1 came in high-speed from the opposite side (Bareilly side) and had hit the car and due to the impact, the car fell into a pit. He deposed that besides him, daughter Rishika and father-in-law Sh. Narayan Dass sustained grievous injuries and his wife died at the place of the accident. The deceased was taken to District Hospital, Rampur, U.P. where she was declared brought dead. It may be relevant to note that the respondent No. 1, though denied that he was driving the truck in high-speed, in his written statement, has not cross-examined PW-1 Amit Kanojia.
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16. PW-1 Amit Kanojia was cross-examined by counsel for the respondent No. 3 / insurer. In his cross-examination, he deposed that he was driving the car in his side on single lane road when the truck had hit the car from the opposite side. He deposed that his car overturned twice and fell into a pot hole on the left side of the road. He deposed that it was a head-on- collision. There is nothing in his cross-examination to discredit him. The respondent No. 1 has neither appeared in the witness box nor examined by the respondent No. 3 / insurer to elicit his account of the accident to prove the contrary. The evidence of PW-1 Amit Kanojia remained unchallenged.
17. At this juncture, it would be relevant to take note of the deposition of PW-6 SI Desh Pal Singh. He was the Investigating Officer of the criminal case. He deposed that during investigation, it emerged that the offending vehicle pertained to Rampur City and he ascertained the name of the owner of the offending vehicle. He deposed that he had seized the truck and got the mechanical inspection thereof conducted. He placed a copy of case diary Mark 'X' (colly, 33 sheets). Site plan of the place of the accident performing part of the case diary Mark 'X' would show that the truck was coming from Bareilly side and it took left turn and in that process, it came into the lane in which the car was moving from Moradabad side to Bareilly on the National High-way. The respondent No. 1 was driving a medium goods vehicle on the National High-way. He has not explained as to why he could not avoid the collision. He has not explained as to why he came into the lane in which PW- 1 Amit Kanojia was driving his car.
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18. The respondent No. 1 is a professional driver. He was driving a medium goods vehicle on the public way. He should have observed precaution while driving such commercial vehicle on the public road. He should not have come into the lane of the car without any indication and signal. It is evident that the respondent No. 1 had not observed requisite precaution while driving the truck on the public way. It is evident that the accident was caused due to rash and negligent driving of the truck.
19. According to the post-mortem report forming part of criminal case record Ex.PW1/A, the cause of death of the deceased was 'cerebral ante-mortem injuries'.
20. It is, therefore, proved that the deceased died in a motor vehicular accident caused by rash and negligent driving of the truck by the respondent No. 1.
21. Accordingly, issue No. 1 is decided in favour of the petitioners and against the respondents. ISSUE NO. 2:
22. The respondent No. 3 / insurer contended, in its written statement, that PW-1 Amit Kanojia was driving WagonR in rash and negligent manner. However, it has not been able to elicit any fact from his cross-examination to attribute contributory negligence to him. There is no proposition of law that in every case of head-on-collision, the driver's of both the vehicles are equally responsible. Site plan of the place of the accident would show that the truck came into the lane in which PW-1 Amit Kanojia was driving his car. Issue No. 2 is decided in favour of the petitioners and against the respondent No. 3.
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23. The respondent No. 3 / insurer, in its written statement, pleaded breach of terms and conditions of insurance policy. However, the respondent No. 3 / insurer has neither demonstrated nor proved breach of any term and condition of insurance policy. Accordingly, issue No. 3 is decided in favour of the respondent No. 1 and 2, and against the respondent No. 3 / insurer.
ISSUE NO. 4:
24. The petitioners being husband, minor daughters and parents of the deceased are seeking compensation for the death of the deceased in the accident caused by rash and negligent driving of the truck by the respondent No. 1. ASSESSMENT OF INCOME OF THE DECEASED:
25. First step towards computation of loss of dependency is the ascertainment of income of the deceased.
26. The case of the petitioners, as pleaded in the petition, was that the deceased was employed as 'AGM' with Dr. Oetker India Pvt. Ltd. at the salary of Rs. 1,45,834/- per month.
27. PW-1 Amit Kanojia relied on copy of academic certificates of the deceased Ex.PW1/2 (colly), increment letter dated 28.04.2016 of the deceased Ex.PW1/3 (colly), income tax return for the assessment years 2013-14, 2014-15 and 2015-16 alongwith Form 16 of the deceased Ex.PW1/4 (colly).
28. The petitioners examined PW-3 Nidhi Dixit, Manager (HR), Dr. Oetker India Pvt. Ltd. to prove the employment and salary of the deceased.
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29. PW-3 Nidhi Dixit deposed that the deceased was working as 'Assistant General Manager' (new product development) since 01.03.2008. She deposed that the deceased was drawing salary in the sum of Rs. 17,50,000/- per annum. She proved salary certificate of the deceased Ex.PW3/3, increment letter already Ex.PW1/3, letter of participation Ex.PW3/5 and the service record of the deceased Ex.PW3/6. According to service record Ex.PW3/6, the deceased was drawing salary in the sum of Rs. 16,00,000/- per annum w.e.f. 01.04.2015. According to salary certificate Ex.PW3/3 and increment letter Ex.PW1/3, the salary of the deceased was revised to Rs. 17,50,000/- w.e.f. 01.01.2016. The salary of the deceased was transferred to her bank account. Copy of salary slips for the period from 01.04.2013 to 31.05.2016 and statement of bank account of the deceased for the period from 01.04.2014 to 02.04.2016 filed on the file of the tribunal. There is unimpeachable evidence to prove that the deceased was drawing annual income in the sum of Rs. 17,50,000/-. After deducting income tax, net annual income of the deceased is computed as Rs. 14,00,000/-. DEDUCTION TOWARDS PERSONAL LIVING EXPENSES:
30. The deceased was survived by her husband and two minor daughters. Her parents joined the petition. However, they have not come forward to claim dependency. Moreover, in his cross-examination, PW-1 Amit Kanojia stated that his parents-
in-laws are residing separately. He categorically stated that his parents-in-laws were never dependent upon them. One-third of income is deducted towards her personal living expenses.
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31. The deceased was 35 years, 4 months and 26 days old at the time of the accident. Her date of birth is mentioned as 19.01.1981 in her academic certificates Ex.PW1/2 (colly), driving license and PAN card Ex.PW1/6 (colly) and service record Ex.PW3/6. Therefore, multiplier of 16 as applicable to age group between 30 to 35 years would apply (See:
Shashikala & Ors. versus Gangalakshmamma & Ors, Civil App. No. 2836/2015 decided on 13.03.2015). FUTURE PROSPECTS:
32. The nature of employment was permanent. The deceased was below 40 years. Following the ruling of a Constitution Bench of the Supreme Court delivered on 31.10.2017 in SLP (C) 25590/2014, National Insurance Company Ltd. vs. Pranay Sethi and Ors., there will be addition of income to the extent of 50%.
LOSS OF DEPENDENCY:
33. Applying the multiplier of 16 after making deduction to the extent of one-third from the income of the deceased and addition of 50% of future prospects, the loss of dependency is computed as (14,00,000 x 150 / 100 x 2 / 3 x 16) = Rs.
2,24,00,000/-.
NON-PECUNIARY DAMAGES:
34. As per dispensation in Pranay Sethi (supra), Rs.
40,000/- towards loss of consortium and Rs. 15,000/- each on account of loss of estate and funeral expenses are added.
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35. The compensation awarded to the petitioners is computed, as under:
Sl. No. Head of compensation Amount
1. Loss of dependency Rs. 2,24,00,000/-
2. Non-pecuniary (in view of Pranay Sethi) Rs. 70,000/-
Total Rs. 2,24,70,000/-
AWARD
36. The petitioners are awarded compensation in the sum of Rs. 2,24,70,000/- alongwith interest @ 9% per annum from the date of filing of the petition (17.11.2016) till the date of award. The respondent No. 3 / insurer shall deposit the award amount with the tribunal within 30 days and otherwise, the award amount will carry interest @ 9% per annum from the date of filing of the petition till realization. [See: judgment dated 22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi & Ors.] APPORTIONMENT AND MODE OF DISBURSAL:
37. The petitioner No. 1 / Mr. Amit Kanojia, the petitioner No. 2 / Baby Rishika and the petitioner No. 3 / Saanvi shall be entitled to the award amount in the ratio of 30:35:35.
38. Amount of Rs. 7,41,000 out of Rs. 67,41,000, being 30% of the award amount, will be released to the petitioner No. 1 / Amit Kanojia and balance amount of Rs. 60,00,000/- will be secured in the form of fixed deposit receipts for the period, as under:
Sl. No. Amount Period of FDR
1. Rs. 6,00,000/ 1 year
2. Rs. 6,00,000/ 2 years
3. Rs. 6,00,000/ 3 years
4. Rs. 6,00,000/ 4 years
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5. Rs. 6,00,000/ 5 years
6. Rs. 6,00,000/ 6 years
7. Rs. 6,00,000/ 7 years
8. Rs. 6,00,000/ 8 years
9. Rs. 6,00,000/ 9 years
10. Rs. 6,00,000 10 years
39. 35% of the award amount alongwith corresponding interest, as awarded to each of the petitioner No. 2 / Baby Rishika and the petitioner No. 3 / Baby Saanvi, will be secured in the form of fixed deposit receipts in their individual names till they attain the age of majority.
40. Copy of award be supplied to the petitioners and the respondent No. 3 / insurer for compliance. File be consigned to record room.
SANJAY Digitally signed by SANJAY
SHARMA
Location: East District,
SHARMA Karkardooma Courts, Delhi
Date: 2018.08.01 16:47:38 +0530
Announced in the open Court Sh. Sanjay Sharma
Dated: 31th July, 2018 Presiding Officer MACT (East)
Karkardooma Court, Delhi
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Suit No. 684/16
31.07.2018
Present : Sh. Krishan Kumar, Advocate for the petitioners.
Ms. Sarika Goel, Advocate for R3 / Insurance Co.
Vide separate judgment, award is passed. To come up for compliance on 04.09.2018.
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