Delhi District Court
Sh.Raje Singh vs Sh.Pramod Kumar on 24 July, 2014
1
IN THE COURT OF SH.HARISH DUDANI
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.:195/13
DATE OF INSTITUTION:29.5.2013
1. SH.RAJE SINGH
S/o SH.BOOTHI SINGH
2. SMT.SHABBA DEVI @ SAVITRI DEVI
W/O SH.RAJE SINGH
BOTH R/O H.NO.2,VILLAGE KAPHALEKH
TEHSIL THALISAIN
DISTRICT PAURI GARHWAL
UTTRAKHAND. PETITIONER
Versus
1.SH.PRAMOD KUMAR
S/O SH.DAL CHAND
R/O H.NO.168, CHOPAL WALI GALI
SAMALKHA, NEW DLEHI110037.
ALSO AT:VILLAGE KANIKPUR
PO DALLUPUR, PS BARNAHAL
TEHSIL KARHAIL
DISTRICT MAINPURI, UP.
2.SH.SUNIL
S/O SH.TARA CHAND
R/O 552, CHAUHAN MOHALLA
RANGPURI, MALIKPUR KOHI
NEW DELHI.
2
3.M/S THE NEW INDIA ASSURANCE CO.LTD.
NEW INDIA ASSURANCE BUILDING
87, M.G.ROAD, FORT MUMBAI400001. RESPONDENT
Final Arguments heard on: 09.07.2014. Award reserved for : 24.07.2014. Date of Award : 24.07.2014. AWARD
1. Vide this judgment cum award I proceed to decide the petition filed U/s 166 and 140 of Motor Vehicle Act, 1988, as amended up to date (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. Briefly stated the facts giving rise to the petition are that on 2.5.2013 Sh.Shyam Singh was travelling in RTV bearing no.DLIVA9401 being driven by respondent no.1 and when the RTV reached at NH8, Service Lane, Near Shiv Murti, Delhi Sh.Shyam Singh requested the respondent no.1 to stop the RTV so that he could deboard the RTV but respondent no.1 all of a sudden instead of stopping the RTV started driving the RTV at a very high speed in a rash and negligent manner due to which Sh.Shyam Singh fell down on the road and sustained injuries and became unconscious and he was taken to Kapashera hospital from where he was advised to be taken to Safdarjung hospital and at 3 Safdarjung hospital Sh.Shyam Singh was declared brought dead.
3. It is stated that at the time of accident Sh.Shyam Singh was aged about 19 years and 10 months and was working in private job with M/s Mint Fine Dyning Restaurant, Rajokari, New Delhi and was earning Rs. 10,000/pm. It is stated that accident was caused due to rash and negligent driving of offending vehicle by respondent no.1, the said vehicle was owned by respondent no.2 and insured with respondent no.3 and as such all the respondents are jointly and severally liable to pay the compensation. It is prayed that Rs.Thirty Lacs be awarded as compensation in favour of the petitioners alongwith interest @ 18% per annum from the the date of filing of the petition till its realisation and against the respondents.
4. Respondents no.1 and 2 driver and owner have filed reply in DAR and have contested the petition. It is stated that the driver of the alleged offending vehicle has a valid and effective driving license which is valid upto 9.4.2015. It is stated that the offending vehicle is insured with respondent no.3. It is stated that no accident has taken place by the offending vehicle driven by its driver. Other averments on merit are denied.
5. Respondent no. 3, the insurance company has filed written statement and has contested the petition. It is stated that the deceased was standing at 4 the gate of the alleged offending vehicle when the accident took place hence the deceased received fatal injury due to his own negligence. It is stated that the petition is bad for misjoinder/nonjoinder of necessary parties. It is admitted that the offending vehicle was insured with respondent no.3. Other averments made on merits are denied.
6. From the pleadings of parties following issues were framed on 16.8.2013.
(1) Whether Sh.Shyam Singh sustained fatal injuries in the accident which occurred on 2.5.2013 at about 12.15PM near Shiv Murti, NH8, Service Lane, Delhi Gurgaon road, New Delhi caused by rash and negligent driving of vehicle no.DLIVA9401 being driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3?OPP.
(2)Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
(3) Relief.
7. In support of their claim, petitioners examined Smt.Shabba Devi @ Savitri Devi/petitioner no.2mother of deceased as PW1. She tendered her evidence in examination in chief by affidavit Ex.PW1/A. PW1 proved death certificate of her son Ex.PW1/1, copy of his election identity card Ex.PW1/2, copy of ration card Ex.PW1/3, copy of High School Certificate of deceased Ex.PW1/4, copy of intermediate certificate of deceased Ex.PW1/5, certified copy of family register Ex.PW1/6, copy of election 5 identity card of Sh.Raje Singh/petitioner no.1 Ex.PW1/7 and certified copies of criminal record Ex.PW1/8(colly.).
8. On the other hand respondents have not examined any witness.
9. I have heard the Ld. counsel for the parties and perused the record. My findings on specific issues are as follows:
ISSUE NO. 1
10.As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that deceased sustained injuries in an accident caused due to rash and negligent driving of offending vehicle no.DL IVA9401 by its driver, the respondent no.1.
11.To determine the negligence of driver of offending vehicle it has been held in National Insurance Company Ltd. V/s Pushpa Rana & Another, 2009 ACJ 287 as follows:
"The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal(supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced:(i) certified copy of the criminal record of criminal case in FIR no. 955 of 2004, pertaining (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A , Indian Penal Code against the driver was lodged; (iii) certified copy of FIR wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are sufficient proofs 6 to reach conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
12.The case of the petitioners is that on 2.5.2013 Sh.Shyam Singh was travelling in RTV bearing no.DLIVA9401 being driven by respondent no. 1 and when the RTV reached at NH8, Service Lane, Near Shiv Murti, Delhi Sh.Shyam Singh requested the respondent no.1 to stop the RTV so that he could deboard the RTV but respondent no.1 all of a sudden instead of stopping the RTV started driving the RTV at a very high speed in a rash and negligent manner due to which Sh.Shyam Singh fell down on the road and sustained injuries and became unconscious and he was taken to Kapashera hospital from where he was advised to be taken to Safdarjung hospital and at Safdarjung hospital Sh.Shyam Singh was declared brought dead. It is stated that case vide FIR No.162/13, u/s 279/304A IPC was registered at PS Vasant Kunj(S). The petitioners examined petitioner no.2 as PW1 who adduced her evidence by way of affidavit Ex.PW1/A. In her affidavit Ex.PW1/A, petitioner no.2 has reiterated the manner of accident as stated in the claim petition. In the cross examination, PW1 stated that she is not an eye witness of the accident.
7
13.The contention of counsel for respondent no.3 is that the petitioners have to prove the negligence of respondent no.1 in causing the accident and no eye witness has been examined.
14.In Municipal Corporation of Delhi Vs Sureshi Devi, MAC. APP. 479/2007 the Hon'ble High Court of Delhi referred to the decisions in Oriental Insurance Company Limited v. Meena Variyal & Ors.,(2007) 5 SCC 428 and Minu B. Mehta v. Balkrishna Ramchandra Nayan & Anr.(1977) 2 SCR 886 and was pleased to hold:
10. In Oriental Insurance Company Limited v. Meena Variyal & Ors.,(2007) 5 SCC 428, the three Judges Bench decision in Menu B. Mehta(supra) was relied. It was held that to claim compensation under Section 166 of the Motor Vehicle Act(the Act), the proof of negligence on the part of the driver of the vehicle was a sine qua non. The owner becomes vicariously liable for the act of his servant and the Insurer on account of the contract of insurance to indemnify the owner. It was observed that in a Petition under Section 163A of the Act, negligence or default on the part of the owner or driver of the vehicle was not required to be proved.
At the same time, it has to be kept in mind that proof of negligence as required in a Claim Petition under Section 166 of the Act, is not the same as in a criminal case i.e."beyond reasonable doubt", but "the preponderance of probability".
15.To determine the negligence of driver of offending vehicle it has been held in National Insurance Company Ltd. V/s Pushpa Rana & Another, 2009 ACJ 287 as follows:
"The last contention of the appellant insurance company is that 8 the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal(supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced:(i) certified copy of the criminal record of criminal case in FIR no. 955 of 2004, pertaining (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A , Indian Penal Code against the driver was lodged; (iii) certified copy of FIR wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are sufficient proofs to reach conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
16. The contention of counsel for respondent no.3 is that the petitioners have not examined any eye witness of the accident. The contention of counsel for petitioner is that the eye witness is not required to be examined as police has filed Detailed Accident Report(DAR) in this case and alongwith DAR police has filed documents of investigation of case which prima facie prove involvement of offending vehicle and on that account the negligence of respondent no.1 in causing the accident has been prima facie proved.
17.The petitioners have filed certified copy of criminal record Ex.PW1/8(colly.) consisting of final report u/s 173 CrPC, statement of 9 Sh.Nand Kishore @ Nandu on which asal tehrir was prepared, copy of FIR No.162/13, u/s 279/304A IPC, PS Vasant Kunj(S), site plan, notice u/s 133 MVAct, seizure memo of offending vehicle, copy of RC of offending vehicle, copy of insurance policy of offending vehicle, copy of MLC as per which Sh.Shyam Singh was declared brought dead, copy of death report, copy of post mortem report prepared at AIIMS, New Delhi as per which cause of death is shock due to cerebral injury caused by blunt external force, which is possible in the alleged circumstances. As per FIR case was registered on the basis of complaint of Sh.Nand Kishore @ Nandu wherein he has reiterated the manner of accident as stated in the claim petition. As per final report u/s 173 CrPC respondent no.1 has been chargesheeted for the offences u/s 279/304A IPC. The respondents have not adduced any evidence in support of their defence . The contention of counsel for respondent no.3 is that the accident took place due to contributory negligence of deceased as he was hanging on the gate of the offending vehicle. Although the respondent no.3 has pleaded that the deceased contributed in causing the accident but apart from oral contention respondent no.3 has not examined any witness in order to corroborate his contention. Thus in view of the testimony of PW1 and documents on record, the negligence of respondent no.1 has been prima facie proved. As such issue no.1 is decided in favour of the 10 petitioners and against the respondents.
ISSUE NO.2
18.As issue no.1 is decided in favour of the petitioners, they are entitled to compensation.
19.The present petition has been filed by petitioner no.1 who is father of deceased and petitioner no.2/ mother of deceased. In the claim petition it is stated that Sh.Shyam Singh was 19 years and 10 months of age at the time of accident and he was unmarried. In view of judgment of Hon'ble High Court in The Oriental Insurance Company Ltd. v. A.K.Puri & Ors, M.A.C. App. No.196/13 the multiplier shall be applicable as per age of deceased. The petitioners have filed on record the High school examination certificate of deceased issued by Board of School Education Uttarakhand Ex.PW1/4 as per which date of birth of deceased is 16.7.1993 hence deceased was about 19 years and 10 months of age and the multiplier applicable as per Sarla Verma and Ors. vs Delhi Transport Corporation and Another (2009) 6 SCC 121 shall be of 18.
20. It is stated in the claim petition that the deceased was in private service and was earning a sum of Rs.10,000/ per month. In para 7 of affidavit Ex.PW1/A the PW1 has stated that the deceased was working as Kitchen Cook Helper with M/s Mint Fine Dyning Restaurant, Rajokari, New Delhi and was getting a salary of Rs.10,000/pm. PW1 stated that she has not 11 filed any document of income of Sh.Shyam Singh. The petitioners have not adduced any evidence to prove the employment and income of deceased. In the circumstances the income of deceased shall be taken as per minimum wages as per his qualification. The petitioners have filed on record the copy of Certificate of Intermediate examination 2012 issued by Board of School Education Uttarakhand Ex.PW1/5 as per which deceased had passed intermediate examination in the month of March 2012. Hence the petitioner shall be entitled to minimum wages of matriculate w.e.f.1.4.2013 which were Rs.9386/pm.
21.The deceased was a bachelor. In Sarla Verma and Ors. vs Delhi Transport Corporation and Another (2009) 6 SCC 121 it was held by Hon'ble Supreme Court that :
"31.Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependant on the 12 father."
22.In view of the above judgment, 50% is to be deducted towards personal and living expenses and after deduction of 50% , the income of deceased would be Rs.938650% of Rs.9386/=Rs.4,693/ per month.
23.In Rajesh and others V.Rajbir Singh and others, 2013 ACJ 1403, it has been held by Hon'ble Supreme Court that :
"11.Since the court in Santosh Devi's case, 2012 ACJ 1428(SC), actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma's case, 2009 ACJ 1298(SC) and to make it applicable also to self employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 percent always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case the deceased victim was below 40 years, there must be an addition of 50 percent to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax,if any. Addition should be 30 percent in case the deceased was in the age group of 40 to 50 years."
24. The age of the petitioner has been taken as 19 years and 10 months at the time of accident. Hence after addition of 50% income of deceased would be Rs.4693/+50% of 4693/=Rs.7039.5/per month which may be 13 rounded as of Rs.7,040/ per month. After applying the multiplier of 18, the total loss of dependency is computed to be as Rs.=Rs.7,040/ x12x18/= Rs.15,20,640/. In Rajesh and others V.Rajbir Singh and others, 2013 ACJ 1403, Hon'ble Supreme Court has held that funeral expenses should be Rs.25,000/. Petitioner is also awarded Rs.25,000/ for loss of love and affection and Rs. 10,000/ towards loss of estate. The total compensation is determined as under:
Loss of dependency : Rs. 15,20,640/
Funeral Expenses : Rs. 25,000/
Loss of Estate : Rs. 10,000/
Loss of Love and Affection : Rs. 25,000/
TOTAL : Rs. 15,80,640/
RELIEF
25.The petitioners are thus awarded Rs.15,80,640/(Rs.Fifteen Lacs Eighty Thousand Six Hundred Forty only) with interest at the rate of 7.5% per annum in view of judgment of Rajesh and others V.Rajbir Singh(supra) from the date of filing of petition till its realisation including, interim award, if any already passed in favour of the petitioner and against the respondents. Petitioner no.1 the father of deceased can not be considered a dependent on deceased in view of judgment of Sarla Verma and Ors. vs Delhi Transport Corporation and Another (supra). In the circumstances entire amount is awarded in favour of 14 mother of deceased Smt.Shabba Devi(As per copy of election identity card Ex.PW1/2, ration card Ex.PW1/3, High School Examination Certificate Ex.PW1/4, Certificate of Intermediate Examination 2012 Ex.PW1/5, the name of mother of deceased is Smt.Shabba Devi and as per ration card Ex.PW1/3 Kumari Savitri is the daughter of Smt.Shabba Devi and no document has been proved to the effect that petitioner no.2 Smt.Shabba Devi is also known as Smt.Savitri Devi.)
26.For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgments the award amount is to be disbursed as follows:
27. 10% of the award amount shall be released to the mother of deceased Smt.Shabba Devi by transferring it into her savings account and remaining amount be kept in FDR in UCO Bank, Patiala House Court, New Delhi in following manner:
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.15
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
9. Fixed deposit in respect of 10% for a period of nine years.
28.The cheque be deposited in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Smt.Shabba Devi.
29.The interest on the fixed deposits shall be paid monthly by automatic credit in the saving accounts of the claimants/beneficiary.
30.Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimant along with the photocopy of the FDR. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of beneficiary.
31.The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period and shall automatically credit the maturity amount in the savings account of the beneficiary.
32.No cheque book shall be issued to the claimant without permission of the court. No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the court.
16
33.Withdrawal from the aforesaid accounts shall be permitted to the beneficiary after due verification and the Bank shall issue photo identity card to the beneficiary to facilitate identity.
34.Bank shall transfer Savings Account to any other branch/bank according to her convenience.
35.The beneficiary shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
36.Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.
37.The respondent no.3 shall deposit the award amount directly in bank account of Smt.Shabba Devi at UCO Bank,Patiala House Court,New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
38.Mother of deceased Smt.Shabba Devi shall file two sets of photographs along with her specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. Mother of deceased Smt.Shabba Devi shall also file the proof of 17 residence and furnish the details of the bank account with the Nazir within a week. Mother of deceased Smt.Shabba Devi shall file her complete address as well as address of her counsel for sending the notice of deposit of the award amount.
39.The respondent no.3 shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimant with a copy to her counsel and the compliance report shall be filed in the court alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 22.9.2014.
APPORTIONMENT OF LIABILITY:
40.Respondents have not led evidence despite opportunities. Thus, respondent no.1 being the driver, respondent no.2 being the owner and respondent no.3 being the insurer are held jointly and severally liable. Respondent no.3 is directed to deposit the award amount within 30 days with interest at the rate of 7.5% from the date of filing of petition till its realisation. In case of any delay, it is liable to pay interest @ 12% per annum for the period of delay. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.
18An attested copy of the award be given to the parties. File be consigned to Record Room.
Announced in the open court. (Harish Dudani) on 24.7.2014. PO/MACT01, New Delhi.