Delhi District Court
Smt. Maya Devi (Wd/O Deceased) vs Sh. Bharat Bhushan @ Appu S/O Sh. Kewal ... on 22 August, 2012
IN THE COURT OF Ms. REKHA RANI:
JUDGE:MACT:DELHI
MACT NO. : 181/11
Case ID NO. : 02404C01425772011
1. Smt. Maya Devi (Wd/o deceased)
2. Sh. Narender (S/o deceased)
3. Sh. Suresh (son of deceased)
4. Ms. Asha (daughter of deceased)
All R/o H. No. 264, Gali No. 5 Khera Gardhi, Delhi
..........Claimants
Versus
1. Sh. Bharat Bhushan @ Appu S/o Sh. Kewal Krishan
R/o 39 BlockD, Swami Shradanand Park, Bhalswa Dairy, Delhi
.........Respondent
DATE OF INSTITUTION : 12.05.11 DATE OF RESERVING ORDER: 22.08.12 DATE OF PRONOUNCEMENT :22.08.12 AWARD
1. " No amount of compensation can restore the lost limb or the experience of pain and suffering due to loss of life. Loss of life or a limb can never be eliminated or ameliorated completely".
Apex Court in R.K. Malik and Another Vs. Kiran Pal 2009 ACJ 1924.
MACT No.181/11 1 of 14 Although no amount of pecuniary damages can replace loss of life or limb, only a humble attempt is being made to provide " just compensation" as per Sections 166 and 168 of the Motor Vehicles Act(in short the Act) to legal representatives of Jag Ram who died in a road accident..
2. DAR was filed after completion of investigation in case FIR No. 49/11 of PS Mahendera Park by SI Surender Singh which was treated as petition u/s 166 (4) of the Act. Drivercumowner Bharat Bhushan @ Appu (in short R1) filed WS in which he disputed the involvement of his motorcycle which is alleged to be offending vehicle in the FIR. Legal representatives of the deceased examined Jai Prakash as PW1 and thereafter closed their evidence. R1 examined himself as R1W1 and Vinit Kumar as R2W1 and thereafter closed his evidence. NEGLIGENCE
3. Jai Prakash is the complainant and eye witness of the case. He stated that on 12.03.11 at about 8:00 pm he and his brotherinlaw Jag Ram were waiting for a TSR near Railway Station Khera Ghadi Colony under Bypass flyover. At that time motorcycle no. DL8S NC2564 coming from Karnal side being driven rashly and negligently by R1 hit his brotherinlaw. His brotherinlaw sustained serious injuries. Motorcyclist also fell down on the road. He was apprehended MACT No.181/11 2 of 14 by the public at the spot. He also sustained simple injuries by falling down from the motorcycle. It was suggested to him in his cross examination that his brotherinlaw was hit by a white car and not by the motorcycle of R1.
4. R1 in his testimony as RW1 stated that on 12.03.11 at about 8:00 pm he was going to Jahangir Puri along with Vinit and when he reached ByPass (mukarba Chowk) a white car coming from back side over took them and hit a pedestrian who was crossing the road. It is further stated that after being hit by white car pedestrian was injured and he fell down on the road. He has further stated that speed of his motorcycle was about 40 kmph. and that he tried to stop his motorcycle by applying emergency brakes with the result he lost balance of his motorcycle. He and pillion rider Vinit fell down. It is further stated that accident did not take place with his motorcycle and that he has been falsely implicated by the police. Testimony of Vinit Kumar ,the pillion rider, as RW2 is also to the same effect.
5. It has to be borne in mind that Motor Vehicles Act does not stipulate holding a trial for petition preferred under section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal holds an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. In State of Mysore Vs. S.S. Makapur, 1993 (2) SCR MACT No.181/11 3 of 14
943. Hon'ble Apex Court held " that tribunal exercising quasijudicial functions are not courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can unlike courts, obtain all information for the points under the enquiry from all sources and through all channels, without being fettered by rules and procedure, which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity depend on the facts and circumstances of each case but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts"
6. In Bimla Devi and ors. Vs. Himachal Road Transport Corporation and Ors (2009) 13 SC 530, Supreme Court held that " In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants.
MACT No.181/11 4 of 14 The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
7. The Judgement Bimla Devi (supra) was relied on by Supreme Court in its latest judgements in Parmeswari Vs. Amir Chand, (2011) 11 SCC 635 and Kusum Lata Vs. Satbir (2011) 3 SCC
646. Kaushnuma Begum & Ors Vs. The New India Assurance Co. Ltd. & Ors. Appeal (Civil) 6 of 2001: Special Leave Petition (Civil) 1431 of 2000 decided on 2nd July 2012.
8. In Kaushnuma Begum (Supra) the vehicle involved in the accident was a jeep which capsized while it was in motion allegedly due to bursting of the front tyre of the jeep and in the process of capsizing the vehicle hit a pedestrian who was walking on the road and subsequently that pedestrian succumbed to the injuries sustained in that accident.
9. The Tribunal dismissed the claim for compensation holding that there was neither rashness nor negligence in driving the vehicle and hence the driver was not liable and accordingly the owner had no vicarious liability to pay compensation to dependents of the victim of a motor accident. High Court of Allahabad dismissed the appeal saying that there was no error in the Tribunal's order. In special leave petition MACT No.181/11 5 of 14 Apex Court, however, allowed the claim.
10. In National Insurance Company Pvt. Ltd. Vs. Smt. Pushpa Rana & Ors. Decided on 20th December, 2007. Hon'ble Delhi High Court observed that "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 Supreme Court in Oriental Insurance Co. Ltd. V. Meena Variyal. On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced (1) certified copy of the criminal record of criminal case in FIR No. 955/2001, pertaining to involvement of the offending vehicle, (ii) criminal record showing completion of investigation of police and issue of charge sheet under Section 279/304A, IPC 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 the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under Motor Vehicles 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 MACT No.181/11 6 of 14 counsel for the appellant also falls face down."
11. In N.K. V. Brothers (P) Ltd Vs M. Karumal Ammal, AIR 1980 SC 1354 Supereme Court has reminded the Claim Tribunals stating as follows:
" Road accidents are one of the top killers in our country, specially, when truck and bus driver operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases bases on the doctrine of res ipsa loquitar. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here and some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes".
12. Now keeping in view the fact that negligence is not required to be proved beyond reasonable doubt in an inquiry U/s 166 of the Act as is expected to be done in a Criminal Trial, let evidence on record be analysed on the touchstone of preponderance of probability as per the aforesaid case law.
13. R1 filed WS and denied any negligence. He has not given MACT No.181/11 7 of 14 any explanation as to why he was prosecuted in the criminal case. He has simply stated that injured was hit by a white car. He has not given any particulars of the white car. What was its registration no.? What was its make? Who was driving it?
14. He has alleged that he has been falsely implicated by the police. He was caught by the public at the spot. Why would crowd gathered at the site of accident apprehend him? No explanation is given by him. There is no reason why the police would falsely implicate him. Copies of report U/s 173 Cr.PC, FIR depict the manner of accident, the vehicle was seized by police at the site. There is no explanation why he was prosecuted in the criminal case arising out of this accident.
15 In postmortem report of Jagram the doctor opined that injuries sustained by the deceased were possible in a road accident. All these facts lead to an irresistible inference that deceased Jagram died on account of injuries sustained by him on being hit by motorcycle no. DL8SNC2564 which was being driven by R1 rashly and negligently. QUANTUM OF COMPENSATION
16. The deceased was working in MTNL and his pay slip record is on page no. 38. The gross salary of deceased is shown as Rs. 35,114/ Deduction towards income tax is Rs. 2595/. It is well settled that to compute the loss of dependency, the deceased's entire pay MACT No.181/11 8 of 14 package which is for the benefit of the family has to be taken into consideration (National Insurance co. Ltd Vs. Indira Srivastava 2008 ACJ 614 (SC) and National Insurance co. Vs. Saroj, 2009 ACJ 2161 (SC), IC3ICI Lombard General Insurance co. Appellant Vs. Chander Kala and Others Respondents, 2012 ACJ 1203 of Delhi High Court). Therefore, after deduction of income tax his actual salary comes to Rs. 32,519/ (35,1142595/) per month.
17. In Sarla Verma & Ors Vs. Delhi Transport Corporation & Anr. 2009 (V) AD(136) Hon'ble Supreme Court held that "we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospect, where the deceased had a permanent job and was below 40 years. Where the annual income is in the taxable range, the words actual salary should be read as actual salary less tax. The addition should be only 30% if the age of deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years." Since the deceased was more than 50 years on the date of accident, there can be no addition towards future prospects.
Deceased was survived by his widow, two sons and one daughter. Deduction towards personal and living expenses as per Sarla Verma (Supra) would be 1/4th i.e.32,5198129 (1/4 of 32,519), Rs. 24,390/. This can be said to be the loss of monthly dependency to the MACT No.181/11 9 of 14 claimants and the annual dependency comes to Rs. 2,92,680/ (24,390x12).
18. As per Secondary School examination certificate issued by CBSE date of birth of deceased is 02.01.1961. The date of accident was 12.03.11. His age on the date of accident was about 50 years 2 months and 10 days.
19. In Urmila Khairwal & Ors Vs. Liyakat Ali & Ors, decided on 28.05.12 Hon'ble Justice G.P Mittal observed in para 2 of the order "as per Sarla Verma & Ors Vs. DTC & Anr (2009 6 SCC 121 the appropriate multiplier is '14' where the deceased is aged between 41 to 45 years and '13' where the deceased is aged between 46 to 50 years. Since the deceased was 45 years and three months and his birth was nearer 45 years, the appropriate multiplier was '14'.
In Amrit Bhanu Shali & Ors Vs. NIC & Ors. Civil Appeal No. 3397 of 2012 vide its order dated April 04, 2012 Hon'ble Apex Court observed that " the selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation.
MACT No.181/11 10 of 14 In the present case deceased aged was 50 years 2 months on the date of accident. Therefore, as per Urmila Khairwal (Supra) multiplier of '13' would be applicable. After applying multiplier of '13' to the multiplicand of Rs. 2,92,680/, we arrive at a figure of Rs. 38,04,840/ towards compensation on account of loss of dependency.
20. Rs. 25,000/ be added towards loss of love and affection, Rs. 10,000/ towards loss of consortium to widow of deceased and Rs. 5,000/ as funeral charges.
21. In view of above additions, total compensation payable to claimants is as under
1. Loss of dependency : Rs. 38,04,840/
2. Loss of love and affection : Rs. 25,000/
3. Loss of Consortium : Rs. 10,000/
4. Funeral expenses : Rs. 5,000/ Total : Rs. 38,44,840/
22. This compensation is apportioned between the claimants as under :
1. claimant no.1 : Rs. 27,44,840/.
2. claimant no.2 : Rs. 3,00,000/.
MACT No.181/11 11 of 14 3. claimant no. 3 : Rs. 3,00,000/ 4. claimant no.4 : Rs. 5,00,000/
23. R1 is directed to deposit the cheques of the awarded amount along with interest @ 7.5% p.a to be calculated from the date of institution till date of actual deposit in Union Bank of India, Sector9, Rohini, Delhi85 through its Branch Manager in the accounts to be opened by the claimants within 30 days from today.
24. In view of the guidelines issued by Apex Court in General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631 for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered:
25. Upon the aforesaid amount being deposited, the Union Bank is directed to release Rs.2,44,840/ out of the awarded amount of claimant no.1 by transferring the same to her Saving Bank Accounts.
The entire amount of claimant no. 2, 3 and 4 be kept in FDRs for a period of 5 years each. The remaining amount of claimant no. 1 be kept in fixed deposit in her name in the following manner :
(i) Rs. 2.5 lac in fixed deposit for a period of one year.
(ii) Rs. 2.5 lac in fixed deposit for a period of two years.
(iii) Rs. 2.5 lac in fixed deposit for a period of three years.
MACT No.181/11 12 of 14
(iv) Rs. 2.5 lac in fixed deposit for a period of four years.
(v) Rs. 2.5 lac in fixed deposit for a period of five years.
(vi) Rs. 2.5 lac in fixed deposit for a period of six years.
(vii) Rs. 2.5 lac in fixed deposit for a period of seven years.
(viii) Rs. 2.5 lac in fixed deposit for a period of eight years.
(ix)Rs. 2.5 lac in fixed deposit for a period of nine years.
(x) Rs. 2.5 lac in fixed deposit for a period of ten years.
26. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Saving Account of the claimants
27. The claimants shall not be having any facility of loan or advance on these FDRs. However, in case of emergent need, they may approach this court for premature withdrawal of any amount.
28. Withdrawal from the aforesaid account shall be permitted to the claimants after due verification and the Bank shall issue photo identity Card to them to facilitate identity.
29. No cheque book be issued to the claimants without the permission of this court.
30. The Bank shall issue Fixed Deposit Pass Book instead of the FDRs to the claimants and the maturity amount of the FDRs be automatically credited to the Saving Bank Account of the beneficiary at the end of the FDRs.
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31. On the request of the claimants, Bank shall transfer the Saving Account to any other branch according to their convenience.
32. The claimants shall furnish all the relevant documents for opening of the Saving Bank Account to the Branch Manager, UBI, Sector9, Rohini, Delhi85. No joint account be opened in their names.
33. Copy of this order be given to parties for compliance. Copy of this order be also sent to Branch Manager, Union Bank of India, Sector9, Rohini, Delhi.
34. DAR is disposed of on aforesaid terms. File be consigned to record room.
ANNOUNCED IN THE OPEN (REKHA RANI)
COURT ON 22.08.12 JUDGE/MACT:ROHINI
DELHI
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