Delhi District Court
Suman Devi W/O Sansar Pal vs Bhopal Singh S/O Sh. S.L. Singh (Driver) on 3 June, 2022
IN THE COURT OF MS. RAJRANI
P.O : MOTOR ACCIDENT CLAIMS TRIBUNAL
EAST DISTRICT : KARKARDOOMA COURTS: DELHI
In the matters of :
MACP No. 102/2017
Unique Case I.D. No. DLET010074922017
1. Suman Devi W/o Sansar Pal
2. Sansar Pal S/o late Sh. Lahari Singh
3. Kushal Singh S/o Sansar Pal
All R/o House No. 686, Gali No.7,
New Ashok Nagar, Delhi110092. ........Petitioners
Versus
1. Bhopal Singh S/o Sh. S.L. Singh (driver)
R/o House No. 279, Harsh Vihar, Delhi110094.
Also at : C/o Sh. Vijay Kumar Jain,
R/o 114A/27, Gali No.2, Madanpuri, Gurugram, Haryana.
Also at : H. No. 122A/14, Gautam Nagar, New Delhi110049.
2. Sh. Vijay Kumar Jain S/o Sh. Mahender Pal Jain (owner)
R/o 114A/27, Gali No.2, Madanpuri, Gurugram, Haryana.
Also at : H. No. 122A/14, Gautam Nagar, New Delhi110049.
3. Ther Oriental Insurance Co. Ltd. (insurer)
A25/27, Oriental House, Asaf Ali Road,
New Delhi110002. .....Respondents
Date of Institution : 01.07.2017
Date of Reserving : 27.05.2022
Date of Judgment : 03.06.2022
AND
________________________________________________________________________________________________ MACP No. 102/17; Suman Devi vs. Bhopal Singh & Ors. MACP No. 121/17; Arjun Kashyap vs. Bhopal Singh & Ors. 1 of 15 Pages MACP No. 121/2017 Unique Case I.D. No. DLET010089482017 Arjun Kashyap (injured) S/o Sh. Kali Ram Kashyap R/o House No.667, Gali No.7, New Ashok Nagar, Delhi110096. .........Petitioners Versus
1. Bhopal Singh (driver)
2. Sh. Vijay Kumar Jain (owner)
3. The Oriental Insurance Co. Ltd. (insurer) .....Respondents (Details as above) .
Date of Institution : 02.08.2017
Date of Reserving : 27.05.2022
Date of Judgment : 03.06.2022
AWARD
1. By this common award, both the claim petitions arising out of same accident, filed under section 166/140 of the Motor Vehicles Act, 1988, would be decided.
2. Important facts of the case are that Vishal (son of petitioners in case MACP No. 102/17) died and Arjun Kashyap (petitioner in case MACP No. 121/17) suffered injuries on account of a motor vehicular accident happened on 21.04.2017 at about 02:30 p.m, at NH56, near Shalvika Farms, Raj Nagar Extension, Ghaziabad, U.P. In connection with this accident, case FIR No. ________________________________________________________________________________________________ MACP No. 102/17; Suman Devi vs. Bhopal Singh & Ors. MACP No. 121/17; Arjun Kashyap vs. Bhopal Singh & Ors. 2 of 15 Pages 540/2017, u/s 279/337/338/304A IPC was registered at PS Sihani Gate. As per FIR, on the aforesaid date and time, Vishal (deceased) alongwith his friend Arjun (injured) was travelling on motorcycle, bearing registration No. DL1SZ3704 and when they reached at the aforesaid place, a truck, bearing registration No. HR55J9069 (in short "offending vehicle"), being driven at a fast speed and in rash and negligent manner, came from behind and hit them from back side. As a result of the accident, Vishal died and Arjun received injuries. During investigation, it was found out that respondent No.1 was driving the offending vehicle at the time of accident. In view of above, petitioners in fatal accident case claimed compensation of Rs.30 lakhs, whereas petitioner in injury case claimed compensation of Rs.3 lakhs.
3. On service of notice, all the respondents marked appearance and filed their respective written statement. In the joint written statement filed by respondent No.1 & 2, they mentioned that they have been falsely implicated in this case and respondent No.1 was not driving the offending vehicle at the time of accident. Respondent No.3/ insurer mentioned that accident was the result of negligence on the part of deceased and injured themselves and respondent No.1 was not negligent in driving the vehicle.
________________________________________________________________________________________________ MACP No. 102/17; Suman Devi vs. Bhopal Singh & Ors. MACP No. 121/17; Arjun Kashyap vs. Bhopal Singh & Ors. 3 of 15 Pages
4. On the basis of pleadings, following issues were framed in both cases on 23.02.2018 :
i).Whether Mr. Vishal died and Mr. Arjun Kashyap suffered injury in a motor vehicular accident on 21.04.2017 at about 02:30 p.m. near Shalvika Farms, NH56, Raj Nagar Extension, Ghaziabad, U.P. due to rash and negligent driving of motor vehicle bearing registration No. HR55J9069 (truck) by respondent No.1/ Bhopal Singh? OPP
ii).Whether the petitioners are entitled to the 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? OPP
iv).Relief.
5. Vide order dated 23.02.2018, for the purpose of inquiry, both these claim cases arising out of the same accident were consolidated and it was ordered that the case MACP No.102/17 would be the lead case. Accordingly, common evidence was recorded in both the cases and the same was kept on record of the lead case.
6. Petitioners examined two witnesses.
6.1 PW1, Suman (petitioner No.1 in fatal case) deposed about the manner of accident of her son (deceased), his age, ________________________________________________________________________________________________ MACP No. 102/17; Suman Devi vs. Bhopal Singh & Ors. MACP No. 121/17; Arjun Kashyap vs. Bhopal Singh & Ors. 4 of 15 Pages education and proposed income at the time of accident and relied upon deceased's birth certificate Ex.PW1/1, his education documents Ex.PW1/2, complaint given to PS regarding accident Ex.PW1/3, aadhaar card of deceased Ex.PW1/4; aadhaar card of petitioner No.1 & 2 Ex.PW1/5 and Ex.PW1/6, postmortem report Ex.PW1/7, bank passbook of petitioner No.1 and required endorsement on it Ex.PW1/8 and Ex.PW1/9, PAN card of petitioner No.2 & 1 Ex.PW1/10 and Ex.PW1/11, insurance certificate of offending vehicle Ex.PW1/12, death certificate Ex.PW1/12A and fitness certificate, RC of offending vehicle and driving license of respondent No.1 MarkA to MarkC. 6.2 PW2, Arjun Kashyap (petitioner/ injured in injury case) was examined as eyewitness of the accident. He deposed about the manner of accident and relied upon his PAN card, original medical bills and treatment record, aadhaar card and college I.D. card Ex.PW2/1 to Ex.PW2/4.
7. The respondent side did not examine any witness.
8. This Tribunal also examined the Investigating Officer of the case SI Sanjeev Kumar as TW1. He produced the criminal case record Ex.TW1/A.
9. I have heard Ms. Pooja Goel, learned counsel for petitioners, Sh. Vivek Sharma, learned proxy counsel on behalf of ________________________________________________________________________________________________ MACP No. 102/17; Suman Devi vs. Bhopal Singh & Ors. MACP No. 121/17; Arjun Kashyap vs. Bhopal Singh & Ors. 5 of 15 Pages respondent No.1 & 2 and Ms. Shalini Upadhyay, learned counsel for respondent No.3/ insurance company, in both cases. 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. To prove the case of petitioners, PW2 Arjun Kashyap appeared in the witness box, being injured as well as eyewitness of the accident. He deposed on the lines of FIR. During cross examination conducted by respondent No.1 and 2, he replied that the truck had hit the motorcycle from behind and the moment he fell down on the road, he had seen the registration number of the vehicle. He stated that he was holding driving license for driving the motorcycle at the time of accident but the same was lost along with his wallet at the time of accident. He denied the suggestion that they were not wearing helmet at the time of accident. During crossexamination conducted by learned counsel for insurance company/ respondent No.3, he denied the suggestion that offending vehicle was falsely implicated and there was no ________________________________________________________________________________________________ MACP No. 102/17; Suman Devi vs. Bhopal Singh & Ors. MACP No. 121/17; Arjun Kashyap vs. Bhopal Singh & Ors. 6 of 15 Pages negligence on the part of the offending vehicle. He further denied the suggestion that he was negligent while driving the motorcycle.
12. Considering the aforesaid crossexamination of the eye witness/ injured, it has become clear that nothing could be extracted for the purpose of rebutting his testimony. It is also evident that FIR was registered without any delay and the registration number of the offending vehicle was mentioned therein. Further, there is no dispute that respondent No.1 was arrested in the aforesaid criminal case and he has been charge sheeted u/s 279/337/338/304A/427 IPC for causing accident in rash and negligent manner resulting into death of deceased and that has not been challenged in any manner. Further, I.O. (TW1) has testified that Vishal was sitting on pillion seat on the motorcycle No. DL1SZ3704, driven by Arjun. During cross examination by learned counsel for insurance company, TW1 stated that he had reached at the place of accident immediately after the accident and found the offending truck and motorcycle of victims and one another motorcycle there in accident condition. Further, he made it clear that he met the injured Arjun in Narinder Mohan Hospital and found the dead body of Vishal lying in mortuary, there. Further, site plan, prepared by the IO also supports the manner of accident as stated by petitioners.
________________________________________________________________________________________________ MACP No. 102/17; Suman Devi vs. Bhopal Singh & Ors. MACP No. 121/17; Arjun Kashyap vs. Bhopal Singh & Ors. 7 of 15 Pages
13. Further, perusal of MLC and postmortem report of deceased Vishal, prepared by Narinder Mohan Hospital, Ghaziabad make it clear that he was brought as road traffic accident case and was declared brought dead and death was caused due to shock and haemorrage as a result of antemortem injuries. Furthermore, the MLC of injured Arjun, prepared at the said hospital reflects that he was brought with history of road traffic accident and found to have suffered multiple abrasions all over the body.
14. In view of this Court, aforesaid material is found sufficient to establish that the accident had occurred due to rash and negligent driving of the offending vehicle by respondent No.1, resulting into death of Vishal and injuries to Arjun Kashyap. Therefore, issue No.1 in both the cases is decided in favour of the petitioner(s).
ISSUE NO. 2QUANTUM :
15. 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.
________________________________________________________________________________________________ MACP No. 102/17; Suman Devi vs. Bhopal Singh & Ors. MACP No. 121/17; Arjun Kashyap vs. Bhopal Singh & Ors. 8 of 15 Pages In MACP No. 102/2017 (Fatal Case):
ASSESSMENT OF INCOME OF THE DECEASED:
16. PW1, mother of deceased has placed on record deceased's class10th certificate Ex.PW1/2, issued from CBSE, Delhi, which shows that deceased had passed class 10 th in 2017. In view of this, income of the deceased has to be considered at par with minimum wages applicable in Delhi for a matriculate person. The rates of minimum wages for matriculate category in Delhi on the date of accident (21.04.2017) was Rs.16,468/ per month. Accordingly, the income of the deceased is taken as Rs.16,468/per month.
DEDUCTION TOWARDS PERSONAL LIVING EXPENSES:
17. Deceased was unmarried and therefore, half of his income would be deducted towards his personal living expenses. APPLICATION OF MULTIPLIER:
18. The birth certificate Ex.PW1/1 and class 10 th certificate Ex.PW1/2 of deceased show his date of birth as 10.05.2000. The accident had happened on 21.04.2017. Therefore, age of deceased on the date of accident was more than 16 years and accordingly, multiplier of 18, as applicable to age group between 1520 years, would be applicable.
FUTURE PROSPECTS:
19. Deceased can be considered as selfemployed. Following ________________________________________________________________________________________________ MACP No. 102/17; Suman Devi vs. Bhopal Singh & Ors. MACP No. 121/17; Arjun Kashyap vs. Bhopal Singh & Ors. 9 of 15 Pages 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:
20. Applying the multiplier of 18, after making deduction of 1/2 of the income of the deceased and by applying 40% addition towards future prospects, the loss of dependency is computed as Rs.24,89,962/ (16,468 x 140/100 x 1/2 x 18 x 12).
NONPECUNIARY DAMAGES:
21. In view of the decision of Supreme Tribunal, dated 31.10.2017, in case of Pranay Sethi (supra), 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. 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. Further, in view of recent decision of Supreme Court in the case titled as United India Insurance Co. Ltd. Vs. Satinder Kaur @ Satwinder Kaur & Ors., Civil Appeal No. 2705 of 2020, decided on 30.06.2020, loss of consortium has to be fixed for each of the ________________________________________________________________________________________________ MACP No. 102/17; Suman Devi vs. Bhopal Singh & Ors. MACP No. 121/17; Arjun Kashyap vs. Bhopal Singh & Ors. 10 of 15 Pages LRs. In this case, there are three LRs of the deceased, who are petitioners here. Thus, claimants are entitled to a sum of Rs.1,65,000/ (44,000x3+16,500+16,500) under this head.
22. In view of above, petitioners shall be entitled for total compensation of Rs.26,54,962/ (Rs.24,89,962+1,65,000/).
23. Since the interim compensation of Rs.50,000/ was disbursed to the petitioner No.1 vide order dated 08.05.2018, the same shall be adjusted. In view of this, petitioners shall be entitled to compensation of Rs.26,05,000/ (Rs.26,54,96250,000=26,04,962, rounded off to Rs.26,05,000).
In MACP No. 121/2017 (Injury Case):
24. Petitioner Arjun Kashyap (PW2) has deposed that on account of accident, he incurred medical expenses of Rs.50,000/. However, he has placed on record original medical bills for a total sum Rs.4,086/. The MLC, issued by Narinder Mohan Hospital, Ghaziabad shows that he suffered multiple abrasions all over body and MR screening done at Kailash Hospital, Noida shows no significant abnormality. Petitioner deposed that he was earning Rs.15,000/ per month by giving home tuitions and accident had partly curtailed his working capacity and he suffered financial loss. Further, he claimed to have spent Rs.5,000/ on conveyance and Rs.10,000/ on special diet. However, it is not disputed that ________________________________________________________________________________________________ MACP No. 102/17; Suman Devi vs. Bhopal Singh & Ors. MACP No. 121/17; Arjun Kashyap vs. Bhopal Singh & Ors. 11 of 15 Pages the nature of injuries suffered by petitioner were simple as per MLC and MRI report and all the treatment taken by petitioner was of the same day no further treatment was claimed to have been taken. Further, no document has been placed on record by petitioner in support of his claim regarding loss of income during treatment and expenses incurred on conveyance and special diet as claimed. Considering the overall facts and circumstances of the case, the interest of justice would be served if the petitioner Arjun Kashyap is awarded a lump sum compensation of Rs.25,000/ for medical expenses, pain and suffering ensued on account of the accident and other heads, if any. Ordered accordingly.
ISSUE NO. 425. The petitioner(s) have conducted the proceedings in these cases diligently. Therefore, petitioner(s) in both the cases are entitled for interest @ 8% per annum on the aforesaid respective award amount from the date of filing of the petitions till realization.
LIABILITY :
26. Now, the question arises as to which of the respondents is liable to pay the compensation amount. As insurance company has contractual and statutory liability to indemnify the insured and in this case, insurance company has not been able to prove ________________________________________________________________________________________________ MACP No. 102/17; Suman Devi vs. Bhopal Singh & Ors. MACP No. 121/17; Arjun Kashyap vs. Bhopal Singh & Ors. 12 of 15 Pages that any term or condition of insurance policy was breached/ violated by insured, therefore, respondent No.3/ insurance company is held liable to pay the aforesaid compensation amount in both the cases.
RELIEF:
In MACP No. 121/2017 (Injury Case):
27. In view of the findings on above issues, this Tribunal awards a total compensation of Rs.25,000/ (Rs. Twenty five Thousand only) alongwith interest @ 8% per annum w.e.f. date of filing of the petition (02.08.2017) till the date of realization, in favour of petitioner Arjun Kashyap and against the respondent No.3/ insurance company.
In MACP No. 102/2017 (Fatal Case):
28. The petitioners are awarded a total compensation of Rs.26,05,000/ (Rs. Twenty Six Lakhs Five Thousand Only) alongwith interest @ 8% per annum from the date of filing of the petition (01.07.2017) till the date of realization.
APPORTIONMENT & MODE OF DISBURSAL In MACP No. 121/2017 (Injury Case):
29. The entire compensation amount awarded to petitioner Arjun Kashyap shall be released to him immediately after deposit the award amount by insurer by way of bank transfer into his ________________________________________________________________________________________________ MACP No. 102/17; Suman Devi vs. Bhopal Singh & Ors. MACP No. 121/17; Arjun Kashyap vs. Bhopal Singh & Ors. 13 of 15 Pages saving bank account.
In MACP No. 102/2017 (Fatal Case):
30. Parents and younger brother of deceased are the petitioners in this case. PW1, mother of deceased has admitted in her crossexamination conducted by learned counsel for insurance company that petitioner No.2 (father of deceased) is working and is financially independent and therefore, petitioner No.2 is not entitled for compensation. Further, the earning father being alive, petitioner No.3 (younger brother of deceased) also cannot be held dependent upon deceased (reference : Sarla Verma & Ors. vs. DTC & Anr., (2009) 6 SCC 121).
31. However, it is held that petitioner No.2 & 3, being father and brother of deceased, respectively, shall be entitled only for the loss of consortium component of Rs.44,000/ each, which has already been computed above under the head of 'nonpecuniary damages' and mother of deceased i.e. petitioner No.1 shall be entitled for rest of the entire compensation amount of Rs.25,17,000/ (26,05,00044,000x2).
32. Aforesaid Rs.44,000/ along with interest shall be released to petitioner No.2 immediately after deposit of the award amount by insurer.
33. Further, since petitioner No.3 is minor as off now as his ________________________________________________________________________________________________ MACP No. 102/17; Suman Devi vs. Bhopal Singh & Ors. MACP No. 121/17; Arjun Kashyap vs. Bhopal Singh & Ors. 14 of 15 Pages date of birth as per his Aadhaar Card placed on record, is 21.09.2004, the loss of consortium amount of Rs.44,000/ along with interest awarded to him shall be secured in the form of an FDR in his name for the period till he attains the age of majority.
34. Further, out of her rest entire share of Rs.25,17,000/, an amount of Rs.4,17,000/ will be released to petitioner No.1 immediately and balance amount of Rs.21,00,000/ and interest will be secured in the form of fixed deposits in her name as per following schedule :
Sl No. Amount (Rs.) Period of FDR
1 3,00,000/ 01 year
2. 3,00,000/ 02 years
3 3,00,000/ 03 years
4. 3,00,000/ 04 years
5. 3,00,000/ 05 years
6. 3,00,000/ 06 year
7. 3,00,000/ 07 years
8. Half of the Interest Component 08 years
9. Half of the Interest Component 09 years
35. Form IVA and IVB in terms of MCTAP are annexed herewith as Annexure A and B respectively.
Announced in the open (RAJRANI) Court on 03.06.2022 Presiding OfficerMACT (East) (Total 15 pages) Karkardooma Courts, Delhi
________________________________________________________________________________________________ MACP No. 102/17; Suman Devi vs. Bhopal Singh & Ors. MACP No. 121/17; Arjun Kashyap vs. Bhopal Singh & Ors. 15 of 15 Pages