Delhi District Court
Smt Kusum Lata Jain (Died During ... vs Smt Kanta Devi on 19 July, 2010
1
IN THE COURT OF SHRI C.K CHATURVEDI:
JUDGE: MACT:NEW DELHI
Date of Institution: 08.08.2000
I. Suit no.: 101/2007
1. Smt Kusum Lata Jain (Died during pendency)
w/o Late Sh. Mam Chand Jain
r/o 16/6, Doctors Lane, Gole Market
New Delhi-110001
2. Ms. Aditi Jain
d/o Sh. Arun Kumar Jain
3. Ms. Ridhima Jain
d/o Late Sh. Arun Kumar Jain
all r/o 16/6, Doctor Lane, Gole Market,
New Delhi .........petitioners
VS
1. Smt Kanta Devi
w/o Sh. Om Parkash
r/o 4476, Gali Raja Patna Mal
Pahari Dhiraj, Delhi
2. Sh. Rishi @ Bhola
s/o Sh. Tara Chand
r/o village-Mugan, P.S-Sampla
district-Rohtak, Haryana
3. Oriental Insurance Co. Ltd.
Regional Office-I, Level-10, Tower-1
Jeevan Bharti, 124, Connaught Circus,
New Delhi
4. M/S Mirror Shine
16/6, Doctor Lane , Gole Market
New Delhi
5. New India Assurance Co. Ltd.
2
23/4767, Pratap Street, Ansari Road,
Daryaganj, New Delhi
.........respondents
Date of Institution: 08.08.2000 II.Suit no.: 93/2007
1. Ms. Aditi Jain d/o Sh. Arun Kumar Jain
2. Ms. Ridhima Jain d/o Late Sh. Arun Kumar Jain all r/o 16/6, Doctor Lane, Gole Market, New Delhi .........petitioners VS
1. Smt Kanta Devi w/o Sh. Om Parkash r/o 4476, Gali Raja Patna Mal Pahari Dhiraj, Delhi 2 Sh. Rishi @ Bhola s/o Sh. Tara Chand r/o village-Mugan, P.S-Sampla district-Rohtak, Haryana 3 Oriental Insurance Co. Ltd.
Regional Office-I, Level-10, Tower-1 Jeevan Bharti, 124, Connaught Circus, New Delhi 4 M/S Mirror Shine 16/6, Doctor Lane , Gole Market New Delhi 5 New India Assurance Co. Ltd.
23/4767, Pratap Street, Ansari Road, Daryaganj, New Delhi 3 .........respondents Date of Institution: 08.08.2000 III.Suit no.: 100/07
1. Aditi Jain d/o Sh. Arun Kumar Jain
2. Ms. Ridhima Jain d/o Late Sh. Arun Kumar Jain
3. Smt Kusum Lata Jain w/o Late Sh. Mam Chand Jain all r/o 16/6, Doctor Lane, Gole Market, New Delhi .........petitioners VS
1. Smt Kanta Devi w/o Sh. Om Parkash r/o 4476, Gali Raja Patna Mal Pahari Dhiraj, Delhi
2. Sh. Rishi @ Bhola s/o Sh. Tara Chand r/o village-Mugan, P.S-Sampla district-Rohtak, Haryana
3. Oriental Insurance Co. Ltd.
Regional Office-I, Level-10, Tower-1 Jeevan Bharti, 124, Connaught Circus, New Delhi
4. M/S Mirror Shine 16/6, Doctor Lane , Gole Market New Delhi
5. New India Assurance Co. Ltd.
23/4767, Pratap Street, Ansari Road, Daryaganj, New Delhi 4 .........respondents Date of Institution: 08.08.2000 IV.Suit no.: 114/07
1. Kusum Lata Jain (died during pendency) w/o Late Sh. Mam Chand Jain r/o 16/6, Doctors Lane Gole Market, New Delhi
2. Ms. Aditi Jain d/o Late Sh. Arun Kumar Jain
3. Ms. Ridhma Jain d/o Late Sh. Arun Kumar Jain all r/o 16/6, Doctor Lane, Gole Market, New Delhi Vs.
1. Smt Kanta Devi w/o Sh. Om Parkash r/o 4476, Gali Raja Patna Mal Pahari Dhiraj, Delhi
2. Sh. Rishi @ Bhola s/o Sh. Tara Chand r/o village-Mugan, P.S-Sampla district-Rohtak, Haryana
3. Oriental Insurance Co. Ltd.
Regional Office-I, Level-10, Tower-1 Jeevan Bharti, 124, Connaught Circus, New Delhi
4. M/S Mirror Shine 16/6, Doctor Lane , Gole Market New Delhi 5
5. Sh. Ramesh Kumar s/o Sh. Shiv Nath r/o Jhuggi no.C-35/253, Raja Bazar, New Delhi (deceased driver of car no.DL-2CH-1438)
6. New India Assurance Co. Ltd.
23/4767, Pratap Street, Ansari Road, Daryaganj, New Delhi .........respondents Date of Award: 19.7.2010 Date of final arguments: 12.5.2010 AWARD 1 On 30th November, 1996, a tragic accident between a blue line bus and a maruti car claimed life of four members of Jain family. The family was survived only by two school going minor children and old grandmother. No male member of the family is alive. The minor sister lost their father (Sh. Arun Jain), mother (Mrs. Renu Jain), younger brother (Master Vardhan Jain) and grandfather ( Sh. Mamchand Jain).
2 It is obvious that surviving minor school going girls faced darkness all around with no elder brother or other male member in the family. The source of survival and daily care, being lost in accident. In this scenario, it is no wonder that their nearones took three years to think of compensation money for the survivors. The claim petition came to be filed in the year 2000, through one of the uncle of the girls. Though, the claim is filed in the year 2000, yet it hangs in the court till now, and the girls who are now grown up, have not received any compensation. The reasons for this situation 6 are not far to seek and imagine. In this case evidence shows that the initial sympathy of the uncle did not last long, due to family disputes.
3 The agony and handicaps of such families is beyond description where deceased leave behind very young children, infants, young girls, totally illiterate wife, dependent parents in old age, sick infirms and handicapped persons. The initial sympathy of relatives and friends wanes with time for various reasons. Such class of victims are not able to piece together evidence required to get the compensation, due to lack of resources, availability of male member in the house, their incapacity to travel to various officers for collection of documents to support their claim. They have no transport facilities nor money. This class of cases need differention treatment in term of access to tribunals etc, and their examination for evidence.
4 During the hearings, witnesses were examined, who were still agitated, as they too received injuries but they were still awaiting some compensation. They did not at all know what to do, where to go or know that law or tribunal exists. They are victims also of legal illiteracy besides physical handicaps. They are also illiterate who cannot access authorities too. In the case in hand, the delay itself had handicapped the girls to put forth the real income from business of father and mother and family, as the next of kith and kin of the family took away the gains of business documents 7 etc, leaving the counsel for petitioner to gather secondary evidence from advocates, office of parents and other official bodies, where documents were filed by them in their life time. The advocate of petitioner Sh. S.M Suri deserves all accolades for going an extra mile to help these victims and collecting some documents from various sources . These documents have evidentially value of their own, for collatral and circumstances to determine the nature, sources, status of family and to determine their living to arrive at just compensation.
4a The accident was extensively covered by the Media as during those days these blue line buses were ruling the road and were killing many persons. Sh. S.M. Suri, Advocate very meticulously collected various newspaper reports and filed them on record, which are Ex.PW3/37 to 71.
4b These reports are important to know the facts, as there are independent reports based on facts gathered at spot by investigative journalists and are not from the mouth of claimants which may be described as subjective rather than objective assessment Nevertheless, the fact remains that the victim of the accident, in the two vehicles involved in the accident, did in no way gain from these journalists reporting, as their reports, serve little purpose, unless the story is carried further towards value added journalism to follow these liable to compensate the victims. The result is that victims left to fend for themselves, are till today before the Tribunal looking up 8 for monetary compensation. The compensation today is being determined exclusively on the facts/data which were available even on the date of accident itself. In any case, the interest on delayed compensation cannot brighten up the lost years of surviving claimants.
5 During the hearing in the case the Ld. Advocate brought many witnesses in support of rash and negligent driving on the part of bus driver. It was not necessary to examine all and only one person was examined, in view of the fact that these witnesses had already deposed in the criminal trial against the accused/driver and they all had deposed about the rash and negligent driving of the bus and they repeatedly told the driver not to drive bus in such fast manner. It came to the notice of Tribunal while examining witness that those witnesses who were passengers in the bus had also sustained injuries in the accident and they were still clueless about the provisions of compensation and the Tribunal etc due to legal illiteracy though they were all still agitated and hoped that they will also be given some compensation as these two sisters were being given. They had a impression that these case will also bring some compensation to them as they thought that police had registered a case and examined them, as they also received injuries. It appears that they have little clue about the technicalities involved in presenting the case in Tribunal.
6 Keeping in view the plight of such passengers who were 9 travelling in the bus and were injured, this tribunal considers it necessary and expedient to grant compensation to those passengers also in keeping with the policy of the law which removed limitation in filing claim petition within the period of six months of the accident. In my view spirit behind section 158(6) of M.V Act invest this Tribunal with the power to treat subsequent final report u/s 173 Cr.PC also as a petition u/s 166 (4) M.V Act and to entertain the same as claim petition u/s 166 (4) suo-moto. 7 In view of this, the Tribunal passed the following order on 24.4.2010:-
''....... In this claim petition, number of passengers in the bus which caused the accident have appeared who deposed about the accident. These witnesses have suffered some injuries in the accident and driver has already been convicted in the criminal court as per certified copy enclosed. Sh. S.M Suri , Ld. Advocate is appointed amicus curie to take up cases of injuries of all these persons for compensation in this court.
Copy of this order be given dasti to Mr. S.M Suri who agreed to take up these cases so that appropriate compensation can be granted. ''
8 Ld. Advocate Sh. S.M Suri was kind enough and deserve compliment for his accepting to take up the claim petitions of such injured in accident who were bus passengers whose statement was recorded in record of police.
9 Before coming to facts and evidence to determine compensation it is necessary to make certain observation, suggestions and directions towards the assistance to such class of 10 victims to help them access tribunal for compensation. 10 (A) Need of ''Amicus'' in such cases:
In my considered view, a system of court appointed amicus for each police station, from amongst the senior and experienced member of the Bar would go a long way in brining the relief to such class of victim of road accident. In such media highlighted cases, the amicus can bring the matter to the notice of socio-legal machinery created under Legal Service Authorities Act, 1987, by helping collection of necessary facts immediately from relatives, friends, police etc so that there amicus could access tribunal for focused attention in such cases. They are to be assisted by someone who as a matter of commitment is ready to serve their cause not for a consideration but as a help. The ld. Amicus appointed in this case has come out with the sensible suggestion that this Tribunal should name one Amicus for each police station and all accident information required of the vehicle, insurance company and other documents are supplied by the local police to this Amicus and public can also approach such amicus where the victims are helpless children or those whose parents died in the accident. The young girls, women who are totally illiterate and whose male member/earning member have died in the accident, the aged old parents whose sons and daughters have died in the accident can approach these amicus through public. This category of claimants have not to run to court to collect material for filing 11 petition. I accept this suggestion and invite senior and experienced to opt for serving as amicus for such cases. The remuneration for such amicus will be settled as part of award money. To begin with Sh. S.M. Suri, Mrs Shubhada Khosla and Sh. G.N. Rathi Advocates have agreed to appear as Amicus for all police stations in New Delhi District, till more amicus are appointed by court. They will also be available to assist police officials seeking their guidance.
11 Need for e-enabling the public/victims of road accidents:
It is the experience of the Tribunals that though the registration number of vehicles involved in accident are known to the victim, lawyers, and insurance companies yet, they are not able to access the data in respect of insurance coverage of vehicle, their permits and validity of the licence of driver. The concerned person in need of justice are handicapped for want of cooperation from the driver, owner and insurance companies for the data. In my considered view, once the policy of law is to have compulsary third party insurance, all relevant information has to be placed in public domain. All transport authorities, transport corporations and the insurance company should place in public domain, the updated information about licences issued, permit issued, insurance policies issued for vehicle registered in Delhi or elsewhere so that the public have an access on a touch screen kiosk in public place/police stations, to enable them to help access the Tribunal themselves, or 12 with the help of others for compensation.
14 Such information in public domain, would go a long way in helping victim, and insurance company in expediting justice.
12 Restricted application of Section 170 M.V Act in such cases :-
The next important question is of applicability of section 170 of M.V Act, to petition filed u/s 166 M.V Act. The Hon'ble Supreme Court in the case of Jai Prakash Vs NIC, SLP (C) no.11801-11804 of 2005, has held that since police itself brings the information u/s 158 (6) of M.V Act, section 170 M.V Act does not apply. It is obviously for the reason that collusion in such cases is ruled out by police investigation. The practice of insurance company has been to question even rash and negligent driving without any manner having any knowledge of it, by moving an application u/s 170 of M.V Act. This invariably delays the justice considerably.
13 The question for consideration is whether accident petition filed u/s 166 of MV Act can be treated differently for purposes of section 170 M.V Act. The FIR for the offence of accident by rash and negligent driving is registered u/s 154 of Cr.PC. This is followed by a full investigation by police. Then follows a final report u/s 173 Cr.PC to the competent court for trial. It is noted that U/s 166 (4) of M.V Act, the FIR of accident is treated as petition for claiming compensation, based on Accident 13 Information Report by police. A claim petition u/s 166 M.V Act is filed by claimants always relying on report u/s 173 Cr.PC. 14 The full investigation by police leading to a challan u/s 173 Cr.PC before Magistrate, in my view, would stand on equal or higher footing than a mere FIR or AIR treated as petition u/s 158 (6) of the M.V Act. In view of both being on equal footing there is no question of application of section 170 M.V Act , to even petition u/s 166 M.V Act, pending or to be filed, as collusion in such cases is ruled out. The decision of Hon'ble Supreme Court in the Jai Prakash case would thus, be equally applicable to pending other petition u/s 166 of M.V Act. The applicability of section 170 M.V Act would thus be limited to cases where insurance companies have their own investigation, at the time of accident or case is filed by claimants without reporting the accident to police. In view of this the application by respondent no.3/insurance company u/s 170 of M.V Act is only to be rejected.
15 FACTS OF THE CASE Needless to say that police investigated the case, arrested the driver and filed a challan Ex. CW3/1 for the trial of driver in the court. The prosecution case has been decided by Sh. D.K Sharma, the then Ld. Metropolitan Magistrate, New Delhi vide judgment dated 29.4.2003 Ex.CW3/34. Following words of judgment deserve reproduction as under:
''In this horrible accident sever persons lost their lives and many more number of persons sustained bodily injuries, some 14 of which were quite grievous in nature. Allegedly the bus being driven by the accused at very fast speed hit against a stationary maruti car which was full of occupants and the impact was so forceful that car was thrown to the some distance and thereafter, the bus hit against a tree. The occupants of the bus also sustained injuries. None of the occupants of the maruti car remained alive and all of them died. The accident took place at Talkatora stadium Road at Talkatora round about which falls in the heard of the city and once more it exposed the lack of safety norms taken by thecommercial vehicle carelessness on the part of its driver. Every year the hundred of live are lest in fatal accident cases.
''In brief the case of prosecution is that accused who was driving the bus bearing no.DL-1P-1259 plying on route no.940 at a very fast speed since beginning and in a negligent manner and when it reached at Shanker Road at downward slope, he accelerated the speed of the bus and passengers of the bus were shouting to slow down the vehicle. However, the driver did not pay any heed and continued to drive the bus at the same speed at around 4.00p.m. when the bus reached at Talkatora round about a green colour martui car came from the side of Birla Mandir and when the driver of the maruti car saw the bus, he slow down his car but the driver kept on plying the bus at the same speed and badly hit against the maruti car due to which car overturned and fell down on the footpath. The bus hit against a tree due to which the passengers flew of outside the bus through windows and glass panes and sustained injuries.''
16 It is also worth mentioning that many passengers in the bus who received serious injuries in the accident appeared as witnesses in the trial court of Sh. D.K. Sharma, the then Ld. M.M. The injured/eye witnesses were PW1 Prem Singh, PW2 Ram Pyare Tripathi, PW3 Ashok Kumar, PW4 Heera Lal, PW5 Harpreet Singh, 15 PW6 Sh. J.T Israni, PW7 Raj Kumar Gupta, PW8 Deepak Jain, PW9 Sh. Ganpat Singh, PW10, Sh. Shyam Sunder Jha, PW12 Sh. Jayant Kumar Ganguly, PW17 Santokh Singh, PW28 Umed Singh. 17 The accused was convicted and sentenced to SI for six months and fine of Rs.1000/- I.D SI for 15 days u/s 279 IPC, SI for six months with a fine of Rs.500/- I.D SI for 10 days u/s 337 IPC, SI for one year with a fine of Rs.1000/-I.D SI for two months u/s 338 IPC and SI for one and half year with fine of Rs.2500/- I.D SI for 3 months u/s 304 A IPC vide order dated 29.5.2003 Ex.CW3/35. 18 These facts were necessary to be mentioned not only to show conclusive finding on rash and negligent driving by the driver leading to this accident in which today only Aditi Jain and Ridhima Jain survived. It is worth noting that even after 14 years of accident they are still in the court waiting for compensation though the driver has been convicted in the year 2003.
19 Petition no.101/07 is filed by both the sisters Aditi Jain and Ridhima Jain for loss of her younger brother Vardan Jain aged six years. The petition no.93/07 is also filed by both sisters for death of their father Arun Kumar Jain aged 42 years. The petition no.100/07 is also filed by both sisters for death of their mother Renu Jain aged 39 years. The petition no.114/07 initially filed by Kusum Lata alongwith their grand daughters for death of her husband Mam Chand Jain aged 65 years.
20 During pendency of the claim petitions Smt. Kusum Lata 16 had died. All the claim petitions filed against owner, driver and insurer of the bus who are respondent no.1 , 2 and 3. At the same time the claimants also joined owner, driver and insurer of the car no.DL-2CH-1438. There are no allegations against the driver, owner and insurer of car driver as the facts reported to police shows that maruti car has been crushed by the bus when the car was stationary and standing on the road.
21 During the trial respondent no.6 New India Assurance Company Ltd. was discharged from the liability vide order dated 29.4.2010 as there are no observation against the driver of car which become victim of the accident.
22 On the pleadings of the parties following issues were framed on 27.9.04:-
1 Whether death of Vardhan Jain, Mam Chand Jain, Arun Kumar Jain and Renu Jain took place due to fatal injuries suffered by them int he road accidentpm 29.11.96 due to rash and negligent driving of bus no.DL-1P-1259 on the part of R-2 Rishi Pal @ Bhola.
2 To what amount of compensation are the petitioners entitled and from whom?
3 Relief.
FINDINGS ON ISSUES ISSUE NO.1 22A I have gone through the evidence and other material 17 placed on record by the counsel for the claimants. I have also considered the evidence of PW2 Jai Bhagwan, LDC from the office of Motor Licensing Officer, IP Estate, New Delhi, PW3 Kishan Chand Thakur, Record Clerk, Lady Harding Medical College, PW4 J. T Israni who was eye witness to the accident. PW5 Sh. Ajay Pandey, UDC, Record Clerk from the office of Registrar of Newspapers for India, Ministry of information & Broadcasting. PW6 Ram Pal Yadav, SA, Sales Tax Office, known as Department of Trade & Taxes and PW7 is Aditi Jain.
23 In view of above discussion in paras above regarding conviction of driver in criminal case, nothing more needs to be discussed on this issue of rash and negligent driving of offending bus. Respondent driver was proceeded exparte. ISSUE NO.2 24 During arguments, Sh. S.M Puri, Advocate submitted that the minor girls had no knowledge of sources of income etc or business details, to show to present in court for claiming compensation and relatives were shy of sharing as information. In this scenario, therefore he had to gather information about the business and other facts from secondary sources by going to advocates's office of deceased person to gather secondary evidence from the documents, if any, available in the office of Advocate filed by parents during their lifetime for different purposes. He found number of documents showing that family was having some 18 publications and following various other social activities. The advocate pointed out statement in the affidavit of Ridhima Jain at page no.6 that both sisters were very small and grandmother Kusum Jain had gone into big shock as there was nobody left to look after their business and also that of grandfather and father. Initially their uncle R.K Jain looked after them for a while and thereafter left them dry and made wrongful gain out of the business of his father Arun Jain. He has been successful brining on record through an application for just compensation u/s 168 of Motor Vehicle Act, the application filed u/s 10 of the Guardianship Ward Act 1990 by Aditi Jain mentioning therein the income and affects earned by Smt. Renu Jain and Arun Jain, to show status of the family. Aditi Jain filed affidavit through this application stating as under:
''That the both the petitioners Aditi Jain and Ridhima Jain were minors at the time of filing the claim petitions and which were filed through the grandmother and uncle Sh. R.K. Jain. The counsel Sh. S.M. Suri had been engaged by the uncle Sh. R.K. Jain.
That because of family disputes, the uncle Sh. R.K. Jain stopped assisting in the proceedings and whatever documents when asked by the Advocate, which could be collected were handed over to the Advocate by the petitioners.19
That inspite of the best efforts the petitioners could not succeed to get the income tax records traced and the Income Tax Department inspite of service having been effected, did not appear in response to the notice issued by this Hon'ble Tribunal, the petitioners filed the photocopies of the relevant income tax returns on record. That now the petitioners have also could lay their hands upon a copy of the petition filed under section 10 of Guardian and Wards Act 1890 which had been filed in the year 1997 through one Sh. S.C. Nigam, Advocate. When contacted Sh. S.C Nigam, Advocate has expressed his inability to furnish any information/records of the above petition having been filed by him in the year 1997. That in order to assist this Hon'ble Tribunal to pass an under section 168 of the Motor Vehicle Act after holding an enquiry into the claims, the petitioners may be permitted to place on record the copy of the said petition showing the financial status of the family of the deceased Smt. Renu Jain and Sh. Arun Kumar Jain. The said petition contains the schedule of the properties left behind by the deceased Sh. Arun kr. Jain and Smt. Renu Jain.
That in the peculiar facts and circumstances, the petitioners crave leave of the Hon'ble Tribunal to the contents of the said Schedule of Properties of the Minors 20 filed with the said petition under the Guardian and Wards Act, 1890 and opportunity be granted to the petitioners to prove by independent source the income and the status of the deceased.
That great injustice and hardship shall be caused to the petitioners in case the application is not allowed. No prejudice, inconvenience and injuries shall be caused to the opposite parties.
Compensation in Suit no.: 101/07
25 This claim petition is filed by Aditi Jain and Ridhima Jain both sisters, who were minor at the time of accident, for claiming compensation for the death of younger brother Vardan Jain who was aged eight years. It is stated that he was student of St. Columbus School. These two sisters were also school going children and loss of their only younger brother is to be compensated. Sh. S.M. Suri, Ld. Counsel for the claimant has contended that Delhi High Court already decided that in case of death of school going minors child, minimum compensation is Rs.3,75,000/- as per law cited in the case of Chiranji Lal & Ors Vs Mangat Ram & Ors I (2010) ACC 855.
26 This is case of two sisters who in young age have lost not only their younger brother, but also mother, father. In Indian families, if parents die then generally brother is the great source of 21 emotional, pshycology and monetary support and strength for the sisters before and after the marriage. In our community, there is festival of Rakhi which gives very special importance to the bond between sister and brother and survives the life of parents and now for these two sisters every Rakshbandhan will remind them throughout their life that their only brother died in the young age. In my considered view, for this particular loss the sisters are to be compensated in addition to Rs.3,75,000/- as pronounced by Hon'ble High Court. I award additional Rs.75000/-each to both the sisters on account of loss for their youngest brother who would have been great life support and and sense of security to them in their lives. Thus, total compensation awarded to these sisters comes to Rs.5,25,000/-to be shared equally.
27 This is an accident of year 1996 when interest @ 12% per annum used to be given. In this case petition was filed in the year 2000. The insurance company filed its reply in 2004 and thereafter case was dismissed in default and restored. Ms. Lalita Bajaj, counsel for the insurance company argued that case has been lingering on only by claimants and insurance company is not liable for the delay. As already discussed earlier it is case where the death of parents and grandfather took place. These petitions were filed with the help of other relatives and such claimants cannot be made suffer seriously and when cases are filed by kith and kins,as such delays are inevitable as children lack understanding and are unable 22 to persue such cases on their own. Therefore, delay on the part of such claimants is to be accepted and cannot prejudice their claims. Therefore, I award interest @ 12% per annum in this case from the date of petition till payment. Respondent no.3 is directed to make this payment as the vehicle is insured with it. Compensation in Suit No.100/07 28 This claim petition is filed by both the sisters to claim compensation for the death of mother Renu Jain. She was 39 years of age and was doing business in the name and style of M/S Mirror Shine and her income is mentioned as Rs.75000/- per annum. Petitioner summoned income tax record to prove payment of income tax. PW7 Aditi Jain was examined, though her affidavit prepared earlier and documents produced as Ex.PW3/1 to Ex.PW3/116. She deposed that inspite of record having been summoned from Income Tax Authorities and duly served, the record was nor produced and not available with C.A. She proved copy of Income Tax Return of Mrs. Renu Jain for assessment year 1995-1996. Ex.PW3/107 is copy of letter of Kusum Lata Jain on behalf of Mrs. Renu Jain, Proprietor of M/S Mirror Shine for closure of business. Ex.PW3/108 copy of income tax return filed on 31.10.95 which shows total income of Rs.54,465/-. Ex.PW3/107 is letter written by Kusum Lata on behalf of Mrs. Renu Jain to Sales Tax Officer. By this letter she gave intimation for closure of business in the name and style of M/S Mirror Shine. Ex.PW3/105 23 and 106 are letters of M/S Mirror Shine for registration. 29 These documents have evidentiary value in order to show that she was housewife and also doing business in the name of style of M/S Mirror Shine. The original record could not be obtained from income tax office despite efforts of petitioners and efforts of the court. The court has to assess/estimate the income on the basis of other circumstances. Documents clearly point out that she was having business of her own. Other circumstances are that family was living in Posh area of Delhi, two daughters were being educated in Materdei public school and son was studying in St. Columbus School, which is highly another reputed public schools. In view of this status I can assess annual income of Renu Jain as Rs.60,000/- and deduct Rs.3000/-from her annual income on account of income tax. Thus, income comes to Rs.57000/-. All this income would have been used for upkeep, education and marriage of children and no deduction from this can be made as wife was being supported by her husband. She was aged 39 years at the time of accident. The multiplier applicable to her age is 16 years but keeping in view the exceptional hardship to the young girls, who lost both parents in young age, it is a fit case for applying higher multiplier, I adopt multiplier of 17 years in this case. Thus, total compensation comes to Rs.9,69,000/-. The daughters have suffered greatest loss of life by death of mother and father and they have been brought up by kith and kin who might have spent on their education and living of 24 children. I also award Rs.10,000/- on account of funeral expenses. Total compensation comes to Rs.9,70,000/-. It will also carry interest @ 12 % per annum from the date of petition till payment, for the reasons already mentioned.
Compensation in Suit no.114/07 30 Mam Chand Jain, aged 65 years was grandfather of these two sisters Aditi and Ridhima Jain. Aditi Jain in her affidavit proved that her grandmother Kusum Lata, widow of Mam Chand and Ridhima Jain and she herself were left behind by Sh. Mam Chand Jain as her father, mother and brother died in the accident. She deposed that Mam Chand was 65 years of age and was man of simple habit and great person. He owned and maintained an ambassador car of his own. Her grandmother was enjoying contended life. She further deposed that he owned Rice and Flour Mill and owned and published newspaper and magazines ''Shreeji Times'' as owner and Editor. She deposed that his monthly income was Rs.10,000/-pm. She deposed that they have undergone mental pain and agony and shock. She deposed that they are entitled for compensation on account of mental pain and agony, loss of society and social status, shock and loss of bereavement and monetary loss.
I have considered the evidence on record. Smt. Kusum Lata wife of Mam Chand had died during the pendency of the proceedings and she alone was financially dependent upon Late Sh. Mam Chand Jain. These two sisters suffered loss of company of 25 their grandfather and loss of love and affection and mental loss. These sisters were not financially dependent on his earnings. I award Rs.50,000/- each to both sisters on account of loss of their grandfather towards loss of love and affection. The ld. Counsel for claimants have placed on record the publication ''Shreeji Times'' in English and Hindi vide Ex.PW3/92 and 93. She proved copy of receipt of Rs.100/- issued by Press Council of India as Ex.PW3/94. She also proved copy of certificate regarding receiving of salary @ Rs.2000/-pm by Sh. Mam Chand during 01.1.95 to 31.3.95 from Chief Editor and Prop. Of Daily Haq Parast, Kaithal,Haryana where he was reporter. She also proved copy of certificate regarding receiving of salary @ Rs.2000/-pm by Sh. Mam Chand during 01.4.95 to 31.12.95 from Chief Editor and Prop. Of Daily Haq Parast, Kaithal,Haryana. Ex.PW3/89 to 91 also shows another publication like Jin Prajna was also being run by Mam Chand Jain. Another publication of ''Shreeji Times'' was also published in his name. These documents show that deceased Mam Chand was respected and socially active person and had some form of income from the publications. Income of Rs.10,000/- from such sources can be taken as token income, though, income may be more. He had no dependency except his wife Kusum Lata. His children were grown up and supporting their family. The loss was only to his wife Kusum Lata who after his death has been maintained and supported by other relatives who also brought up these two sisters. She after 26 death of Mam Chand Jain lost all financial support and rather responsibility to bring up these two young girls came on her who were studying in schools. After making deduction of one-third from Rs.10,000/- on account his own maintenance, loss of dependency comes to Rs.6667/-. Annual dependency comes to Rs.80,004/. He was aged 65 years. The multiplier applicable to his age is 5. Thus, total loss of dependency comes to Rs.4,00,020/-. I also award Rs.10,000/- on account of loss of consortium to Kusum Lata and Rs.10,000/- on account of funeral expenses. Total compensation comes to Rs.5,20,020/- alongwith interest @ 12% per annum.
As Smt. Kusum Lata died during the pendency of the case, the compensation determined would be given to both the petitioners Aditi Jain and Ridhima Jain in equal proportion. Compensation in Suit no.93/07 31 This claim petition is filed for the death of Arun Kumar Jain by both Aditi and Ridhima Jain. Aditi Jain in her affidavit deposed that her father was 42 years of age. She deposed that she was simpler person and was business man and Industrialist. She deposed that he was earning over Rs.1,50,000/- per annum. She deposed that amount of Rs.50,000/- was spent on customary funeral ceremonies. She deposed that there was nobody to look after his business after his death. She deposed that initially their uncle R.K Jain was looking after them for sometime and thereafter, he left 27 them to make wrongful gains out of the tragedy. She deposed that they were left helpless on the road and she was not able to bring record from income tax department and record was reported to be destroyed. However, as per copy of return Ex.PW3/114 filed for the year 1995 and 1996 his income was Rs.1,16,028/- and tax on total income was Rs.21808/-.
In the absence of the direct evidence of income and circumstances that all male members of family died and these girls were school going children, they were not in position to keep records of business and other documents which came in the hands of uncle Sh. R.K Jain.
She deposed R.K Jain initially supported them and thereafter started making wrongful gain from the business left by their father, grandfather and mother. These circumstances are to be kept in view in ascertaining the true income of the deceased. Social status, children education are sure indicators of the nature of income earned for particular living style. It has come in evidence that these two sisters were studying in Materday Public School and these two sisters were 12 and 14 years of age and father was maintaining car and grandfather was social activists having publishing house. They were living in posh area of Delhi in Bengali Market. The education of three children in public school would certainly reflect a higher class living and income to support . In the circumstances, income of Rs.1,16,028/- certainly can be taken as annual income, in 1995-96 .
28Without any hesitation income of Rs.1,16,028/- in the year 1995-96, can be taken to estimate income at the time of death. I would estimate income at Rs.1,20,000/- though it may be more, as income was coming from business. Rs.4000/- is deducted on account of his income tax, thus, income comes to Rs.1,16,000/-. Deceased was aged 42 years. One-third of his income would be deducted on account of his personal expenses, then his income comes to Rs.77334/-. The multiplier applicable to his age is 14 but keeping in view the exceptional hardship to the young girls, who lost both parents in young age, it is a fit case for applying higher multiplier. I adopt multiplier of 16 years in this case. Total compensation comes to Rs.12,37,344/-. I also award Rs.15,000/- on account of funeral expenses and Rs.50,000/- each to Aditi and Ridhima Jain on account of loss of love and affection. Total compensation comes to Rs.13,52,344/- alongwith interest @ 12% per annum from the date of petition till payment.
RELIEF 32 I pass award of Rs.5,25,000/-in Suit no.101/07 in favour of petitioners and against respondent no.1,2 and 3 alongwith interest @12% p.a from the date of petition till payment to petitioners.
I pass award Rs.9,70,000/-in Suit no.100/07 in favour of petitioners and against respondent no.1,2 and 3 alongwith interest @12% p.a from the date of petition till payment to petitioners.
I pass award Rs.5,20,020/-in Suit no.114/07 in favour of 29 petitioners and against respondent no.1,2 and 3 alongwith interest @12% p.a from the date of petition till payment to petitioners.
I pass award Rs.13,52,344/-in Suit no.93/07 in favour of petitioners and against respondent no.1, 2 and 3alongwith interest @12% p.a from the date of petition till payment to petitioners.
The petitioners Aditi Jain and Ridhima Jain are left behind as legal heirs in all four petitions. Awarded amount shall be shared equally by both the Aditi Jain and Ridhima Jain. It is directed that 80% of the amount awarded to both of them be kept in FDR for a period of 10 years. They would be entitled for quarterly interest on said FDRs but no loan shall be granted against the said FDRs. They being major girls now, will be able to manage the life on their own. They can approach the court, for early use of compensation amount for the education and marriage.
In terms of Delhi High Court judgment in the case of Nanisari, the Insurance company is directed to pay the amount within 45 days with interest @ 12% from date of filing of petitions till the date of payment.
Copy of this order be sent to all the SHO, ACP of New Delhi District and to Sh. G.N. Rathi and Sh. S.M. Puri, Mrs. Shubhada Khosla and Secretary, New Delhi Bar Association.
File be consigned to R/R.
Announced in the open court (C.K. CHATURVEDI)
on 19.7.2010 JUDGE: MACT
NEW DELHI
30
Suit no.:100/07, 101/07, 14/07 and 93/07
05.6.2010
Pr: Counsel for parties
Partly award dictated. Now,to come up on 19.7.2010.
JUDGE/MACT/05.6.10
19.7.2010
Pr: Counsel for the petitioner
Vide my separate award petitions decided in favour of petitioners. File be consigned to R/R. (C.K. CHATURVEDI) JUDGE: MACT NEW DELHI 19.7.2010