Delhi District Court
Sh. Satya Narayan Chaudhary vs Mohd. Yameen on 15 December, 2011
IN THE COURT OF SH. ARVIND KUMAR : PRESIDING OFFICER: MACT
KARKARDOOMA COURTS : DELHI
M.A.C. Petition No: 824/10
Unique Case ID No. : 02402C0562562008
1. Sh. Satya Narayan Chaudhary
S/o Late Dwarka Lal Chaudhary
(69 years old father of the deceased)
2. Smt. Gaytri Devi Jaiswal
W/o Sh. Satya Narayan Chaudhary
(65 years old mother of the deceased)
3. Miss Ratna Raj Laxmi
D/o Sh. Satya Narayan Chaudhary
(27 years old unmarried sister of the deceased)
All R/o : House No. A-137, Gali No. 4,
Pocket 5, Sonia Vihar, Near C.R.P.F. Water Tank,
P.S. Khajuri Khas, Delhi-110094 ........ Petitioners
VERSUS
1. Mohd. Yameen
S/o Mohd. Asgar
R/o Vill. Talheri, Bujurg
Distt. Saharanpur (U.P.)
Also at : C/o Mohd. Hussain Jaidi
R/o 149/15, Kidwai Nagar,
P.S. Kotwali Sadar
Distt. Muzaffernagar (U.P.) 251002
(Driver of Tata Truck No. HR-38E-3327)
2. Mohd. Hussain Jaidi
S/o Mohd. Shaukat Ali
R/o 149/15, Kidwai Nagar,
P.S. Kotwali Sadar,
Distt. Muzaffarnagar (U.P.) 251002
(Owner of Tata Truck No. HR-38E-3327)
3. Reliance General Insurance Co. Ltd.
D.O. Meerut,
3rd Floor, P.P. Plaza, Mangal Pandey Nagar,
University Road, Meerut-250002
Policy No. 200701251833
Valid from 03.12.2007 to 02.12.2008 .... Respondents
M.A.C. Petition No : 824/10 Page No. 1/14
Presented on : 02.08.2008 Reserved for judgment on : 29.11.2011 Judgment delivered on : 15.12.2011 JUDG MENT
1. The present petition is filed by the petitioners u/s 166 & 140 of MV Act claiming compensation towards the death of one Sh. Jyan Bhushan, aged 35 years, in the road side accident dt. 30.03.2008.
2. The brief facts as stated by petitioners are that on 30.03.2008, deceased Sh. Jyan Bhushan was going to Haridwar from Delhi along with some of his friends in Maruti Car No. UP-78AD-4170 and when they reached at Bijopura Chauraha, ahead of Muzaffarnagar, U.P., a TATA Truck bearing no. HR-38E-3327, being driven by respondent no. 1 at high speed, rashly and negligently, came from opposite direction and hit the Maruti Car. Sh. Jyan Bhushan and other occupants of the car suffered injuries and Sh. Jyan Bhushan succumbed to the injuries suffered in the accident in govt. hospital, Muzaffarnagar, U.P. An FIR No. 45/2008 u/s 279/337/338/427/304-A IPC was registered against respondent no. 1. It is stated that deceased was 35 years of age and was graduate (B.Sc. Hons). He was pursuing 5th semester of Masters of Business Administration from Bhartiya Vidya Bhawan, New Delhi. He was a Sr. Sales Executive with HDFC Bank and was proprietor of Chaudhary Enterprises and was also distributor for RCM and his total monthly income was Rs. 40,000/- per month i.e. Rs. 27,663/- from HDFC Bank and Rs. 13,000/- per month from Chaudhary Enterprises. It is stated that future earnings would have been not less than Rs. 1 lac per month.
3. Respondent no. 1 and 2 did not contest the case and were proceeded ex-parte.
4. The respondent no. 3/ insurance company filed written statement admitting that vehicle no. HR-38E-3327 was insured with respondent no. 3 vide M.A.C. Petition No : 824/10 Page No. 2/14 policy no. 1907382334100009 for the period 04.12.2007 to 03.12.2008. It is further stated that the insurance company would not be liable in case the driver was not holding a valid and effective driving licence or if there was breach of terms and conditions of the policy. It is stated that respondent no. 2 had not intimated about the happening of the accident as per the terms and conditions of the insurance policy and therefore insurance company was not liable to indemnify the insured. It is also stated that driver, owner and insurer of the car should have been impleaded as party. It is also stated that in case it is found to be case of contributory negligence, the compensation if any should be apportioned proportionately and should be reduced to the extent of contributory negligence as per established principles of law.
5. On the basis of the pleadings following issues were framed :-
1. Whether deceased Sh. Jayan Bhushan, suffered fatal injuries in the accident occurred on 30.03.2008 due to rash and negligent driving of vehicle (Tata Truck) No. HR-38E-3327 being driven by respondent no. 1? (OPP)
2. Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? (OPP)
3. Relief.
6. The petitioner no. 2 examined herself as PW-2. Petitioner also examined Sh. Ayush Khanna, Personal Banker, HDFC Bank as PW-1, Sh. Vinay Kumar Singh as PW-3 and Sh. Rajnish Kumar, Manager, HDFC Bank Ltd. as PW-4. On the other hand, respondents did not lead any evidence.
7. I have heard counsels for the parties and gone through the material on record. Ld. Counsel for petitioner contended that for the purpose of calculating compensation multiplier should be taken as per the age of the deceased. It is also contended that 1/3rd of income of the deceased should be deducted as there were three dependants of the deceased. It is further contended by the counsel for petitioner that 50% amount of the income of the deceased should be added towards future prospects. Counsel for petitioner relied upon the M.A.C. Petition No : 824/10 Page No. 3/14 judgment "P.S. Somanathan and ors vs District Insurance Officers and anr." 2011 ACJ 737 passed by Hon'ble Supreme Court of India.
8. On the other hand, counsel for insurance company contended that multiplier should be taken as per the age of mother of the deceased and ½ of the amount of income of the deceased should be deducted towards personal expenses as the deceased was bachelor. It is further contended by the counsel for insurance company that as the deceased was not having any permanent job therefore no amount may be added towards future prospects. Ld. Counsel for insurance company relied upon the judgments, "National Insurance Co. Ltd. vs Shyam Singh and ors." C.A. No. 4921/2001, "Maharashtra State Road Transport Corporation vs Lalnipuii", 2007 ACJ561, "Ramesh Singh and anr. Vs Satbir Singh and anr" 2008 ACJ 814, "New India Assurance Co. Ltd. vs Satender and ors.,: III(2007) ACC 46(SC) and "Jayakodi and ors. Vs National Insurance co. Ltd. and anr." II(2010) ACC 592 (SC).
9. My findings on issues are as under : -
ISSUE NO. 110. Petitioner no. 2 examined herself as PW-2 and exhibited the attested copy of FIR as PW-2/1, certified copy of site plan as PW-2/2, charge sheet as PW-2/3, Postmortem report as PW-2/4, Death certificate as PW-2/5. Testimony of PW-3 Sh. Vinay Kumar Singh is relevant on this issues. PW-3 Sh. Vinay Kumar Singh deposed that on 30.03.2008, he was going to Haridwar with his friends namely Sh. Manoj Goel, Sh. Ashutosh Mishra, Sh. Devashish Kumar and Sh. Jyan Bhushan in Maruti-800 and a truck came from opposite side and hit the Maruti Car. Sh. Ashutosh Mishra died on the spot. Sh. Jyan Bhushan suffered injuries. The police took them to hospital and the police recorded his statement and an FIR was lodged on his statement. During cross-examination, PW-3 stated that Maruti-800 must be at a speed of 60 km/hr at the time when the accident took place.
M.A.C. Petition No : 824/10 Page No. 4/1411. The FIR, postmortem report, site-plan, charge-sheet and the testimony of the PW-3, taken together fully establish the death of the deceased caused by the injuries sustained by him in a road accident involving truck bearing registration No. HR-38E-3327. There is nothing on record to dispel the inference that deceased Sh. Jyan Bhushan Chaudhary, died on account of injuries sustained by him in a road accident which occurred on 30.03.2008 involving the vehicle bearing No. HR-38E-3327 being driven by its driver. The testimony of PW-3 is reliable, trustworthy and consistent. There is no evidence in rebuttal. The issue no. 1 is decided in favour of petitioners and against the respondents.
ISSUE NO. 212. PW-2 Smt. Gayatri Devi deposed that deceased was 35 years of age being born on 02.11.1972 and was unmarried and was graduate with B.Sc (Hons.)Botany and had passed B.Sc.(Hons.) with first class in the year 1994. He was also pursuing MBA from Bhartiya Vidya Bhawan. The deceased, Sh. Jyan Bhushan was also working as Sr. Sales Executive with HDFC Bank and was getting salary of Rs. 27,663/- as monthly salary from HDFC Bank. He was also running his business under the name Chaudhary Enterprises with TIN No. 07270317368. He was also distributor of RCM and his income was Rs. 40,000/- per month from all sources and he would have earned Rs. 1.25 per month at the top of his career. It is stated that deceased used to give Rs. 30,000/- per month to meet out the expenditure of the family. PW-2 exhibited the educational certificate of deceased as PW-2/7, Ration card as PW-2/6, original D-Vat Form of Chaudhary Enterprises as PW-2/8, original challan for D-Vat are collectively exhibited as PW-2/9, original documents pertaining to registration of Chaudhary Enterprises as PW-2/10. During cross-examination, she stated that she did not know if her deceased son was income tax payee.
13. PW-1 Sh. Ayush Khanna, Personal Banker, HDFC Bank exhibited the record of declaration certificate and salary slips of Sh. Jyan Bhushan as M.A.C. Petition No : 824/10 Page No. 5/14 PW-1/1. During cross-examination, PW-1 stated that he had not brought the appointment letter of deceased Sh. Jyan Bhushan. PW-4 Sh. Rajneesh Kumar, Manager, HDFC Bank Ltd. exhibited the pay slip of Sh. Jyan Bhushan for the month of March 2008 as PW-4/A. PW-4 stated that Sh.Jyan Bhushan was drawing a sum of Rs. 12,000/- per month as salary. It consisted of Rs. 9500/- as basic salary and Rs. 2500/- as conveyance. PW-4 also stated that besides salary Sh. Jyan Bhushan was also granted incentives on basis of monthly performance. In the month of March 2008 he got incentives of Rs. 12642/- and Sh. Jyan Bhushan joined on 10.12.2007 on contract basis for two years. He stated that they used to deduct corresponding part of the salary on the basis of leave. Sh. Jyan Bhushan was getting salary on monthly basis but they were calculating the salary on the basis of days worked in a month. Earlier Sh. Jyan Bhushan must have been working with Rajouri Garden Branch and he joined their branch at Barakhamba Road on 10.12.2007. During cross-examination, PW-4 stated that he had not brought the appointment letter of Jyan Bhushan vide which he was appointed for two years.
14. Ld. Counsel for petitioner contended that age of the deceased should be considered for taking the multiplier and 1/3rd of the income of the deceased should be deducted towards personal expenses. In the judgment, "P.S. Somanathan and ors vs District Insurance Officers and anr." 2011 ACJ 737 passed by Hon'ble Supreme Court of India, relied upon by the counsel for petitioner, Hon'ble Supreme Court referred the judgment of "Sarla Verma and ors. Vs DTC and ors." and taken the multiplier as per the age of the deceased. Hon'ble Supreme Court observed that sister of the deceased was also dependent on the deceased.
15. Contention of Ld. Counsel for insurance company is that ½ of the amount of income of the deceased should be deducted towards personal expenses as the deceased was bachelor and the multiplier should be taken as per the age of the mother of the deceased. Ld. Counsel for insurance company relied upon the judgments, "National Insurance Co. Ltd. vs Shyam Singh and ors." C.A. No. 4921/2001, "Maharashtra State Road Transport Corporation vs Lalnipuii", 2007 ACJ561, "Ramesh Singh and anr. Vs Satbir Singh and anr" 2008 ACJ 814, "New M.A.C. Petition No : 824/10 Page No. 6/14 India Assurance Co. Ltd. vs Satender and ors.,: III(2007) ACC 46(SC) and "Jayakodi and ors. Vs National Insurance co. Ltd. and anr." II(2010) ACC 592 (SC).
16. In the judgment, "Maharashtra State Road Transport Corporation vs Lalnipuii", Hon'ble Supreme Court observed that age of the claimants and not age of the deceased where parents are claimants should be considered for applying multiplier. Further in the judgment, "Ramesh Singh vs Satbir Singh and ors.", Hon'ble Supreme Court observed that age of the parents is relevant for the choice of multiplier. Almost same observations were made by Hon'ble Supreme court in "New India Assurance Co. Vs Satender and ors." In the judgment, "Jayakodi and ors vs National Insurance Co. Ltd. and ors." Hon'ble Supreme court observed that father, sister and brothers were neither dependants nor legal representatives of the deceased and the entire compensation was directed to be granted to mother of the deceased. In the matter titled, "National Insurance Co. vs Shyam Singh and ors.", Hon'ble Supreme Court applied the multiplier by taking the average of the age of the parents of the deceased.
17. Law is well settled as laid down in Sarla Verma vs DTC and ors. All these principles have been discussed at length in the recent judgment of Hon'ble Supreme Court in "Smt. Sarla Verma and ors vs DTC and anr." CA No. 3483 of 2008. It is observed that firstly income of the deceased per annum should be determined and out of the said income the deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance can be considered with the contribution to the dependent of family. It was further observed that the multiplier should be from the table with reference to the age of the deceased and the annual contribution to the family when multiplied by the multiplier comes to loss of dependency to the family. Thereafter a conventional amount in the range of Rs. 5000-10,000/- may be added as loss of estate and Rs. 5,000/- to Rs. 10,000/- should be added under the head of loss of consortium. The funeral expenses, cost of transportation of body, if incurred and cost of medical treatment of the deceased before the death, if incurred should be added.
M.A.C. Petition No : 824/10 Page No. 7/1418. Hon'ble Supreme Court further observed that 1/3rd of the income may be deducted towards personal expenses of the deceased, if he is married and 50% may be deducted in the case of bachelor. Although rule is not inflexible and is merely a guideline. Hon'ble Supreme Court in the above said judgment further laid down that deductions towards personal living expenses of the deceased should be 1/3rd when the number of dependents of family members are 2-3, 1/4th when the number of dependents of family members are 4-6 and 1/5th where number of dependents of family members are more than six.
19. For computation of compensation in death cases, in nutshell, the Hon'ble Supreme Court in "Smt. Sarla Verma & ors. vs DTC & Anr, has laid down the following guidelines.
I. MULTIPLIER
Age of the deceased (in years) Multipliers
15-25 18
26-30 17
31-35 16
36-40 15
41-45 14
46-50 13
51-55 11
56-60 9
61-65 7
Above 65 5
II. DEDUCTION FOR PERSONAL AND LIVING EXPENSES
1. Deceased - unmarried
(i) Deduction towards personal expenses : 1/2 (50%)
(ii) Deduction where the family of the
bachelor is large and dependent on
the income of the deceased :1/3rd(33.33%)
M.A.C. Petition No : 824/10 Page No. 8/14
2. Deceased-married
(i) 2 to 3 dependent family members : 1/3rd deduction towards
personal expenses.
(ii) 4 to 6 dependent family members : 1/4th deduction towards
personal expenses.
(iii) More than 6 family members : 1/5th deduction towards
personal expenses.
III. FUTURE PROSPECTS
1. Below 40 years of age : Actual salary + 50% towards
future prospects.
2. Between 40-50 years : Actual salary + 30% towards
future prospects.
3. More than 50 years job : Actual salary only. No addition
for future prospects.
IV. NON-PECUNIARY DAMAGES
1. Compensation for loss of estate : Rs. 5,000/- to Rs. 10,000/-
2. Compensation for loss of : Rs. 5,000/- to Rs. 10,000/-
consortium
3. Funeral expenses : Actual cost and medical
expenses.
V. RATE OF INTEREST
Rate of interest : 7.5%
20. I have gone through the material on record. The salary slips, Ex.PW-1/1, issued by HDFC Bank, Rajouri Garden Branch, show that deceased got salary in the month of April 2007, May 2007, June 2007, July 2007, August 2007 and September 2007 but no salary has been shown in the months of October 2007, November 2007, December 2007, January 2008, February 2008, March 2008. Another salary slip (which is also exhibited as PW-1/2) issued by HDFC Bank M.A.C. Petition No : 824/10 Page No. 9/14 Barakhamba Road shows that deceased got salary in the month of January 2008, February 2008 and March 2008. The PW-4, Sh. Rajneesh Kumar, Manager HDFC Ltd. exhibited the salary slip of deceased Sh. Jyan Bhushan as PW-4/A. The salary slip shows the net salary to be Rs. 23,502/-. The PW-4 has stated that deceased was getting basic salary of Rs. 12,000/- and got incentive of Rs. 12642/- in the month of March 2008. The PW-4 has stated that deceased was employed with HDFC Bank Barakhamba Branch from 10th of December 2007. The salary slip Ex.PW-4/A issued by HDFC Bank, Barakhamba Road shows salary of the deceased for the month of January, February and March is not the fixed salary as in the January, the salary is shown as Rs. 20,516/-, in February Rs. 22,742/- and in March Rs. 24,642/- . Under these facts and circumstances, the average salary for one month out of these three months can be considered. The salary comes to Rs. 22,633/- per month.
21. The PW-1 also stated that deceased was doing his business under the name and style Chaudhary Enterprises and was earning some amount and his total earning was Rs. 40,000/- per month. It is also stated that deceased was also working as Distributor of RCM. The petitioner did not disclose as to how much amount the deceased was earning from business. The VAT receipts placed on record by the petitioner shows that deceased was paying VAT. Petitioner failed to place on record any balance sheet or the statement of Bank account or the income tax return so that the income of the deceased from business could be ascertained. It is not clear as to whether the business run by deceased was running in profit or in loss. There is no material on record to show that deceased was having income from business.
22. The average salary of the deceased is Rs. 22,633/- per month. The annual salary of the deceased comes to Rs. 2,71,596/- per annum. It is also clear from the testimony of PW-4 that deceased was working on contract of 2 years and salary was calculated as per the days worked in a month. As the deceased was not having permanent job or working on permanent post and there is no material on record to show that income of the deceased would have increased in future, therefore following the judgment of "Sarla Verma and ors vs DTC and ors", no M.A.C. Petition No : 824/10 Page No. 10/14 amount can be added towards future prospects. Interest of justice would be met if 1/2 i.e. Rs. 1,35,798/- is deducted as the personal and living expenses of the deceased (as the deceased was bachelor). After such deduction the contribution to the family (dependants) is determined as Rs. 1,35,798/- per annum. There is no material on record to infer that father and sister of the deceased were dependent on the deceased. The petitioners failed to establish that father of the deceased was not having any income or were dependent on deceased. Sister of the deceased was major and was 27 years of age at the time of filing of the petition. Therefore the petitioner no. 2 the mother of the deceased can be considered as dependent/LR and therefore the multiplier applicable would be 7 (as per the age of mother of deceased was 65 years as per the ration card). Therefore, the total loss on dependency would be Rs. 1,35,798 x 7 = Rs. 9,50,586/-. The judgment "P.S. Somanathan and ors vs District Insurance Officers and anr." 2011 ACJ 737, is not applicable under the facts and circumstances of the present case.
23. In addition the claimants will be entitled to a sum of Rs. 10,000/- under the head of love and affection, Rs. 10,000/- loss of estate, Rs. 5,000/- towards funeral expenses. Thus the total compensation comes to Rs. 9,07,000/-. Rounded off to Rs. 9,75,586/-. (rounded off to Rs. 9,75,600/-) LIABILITY
24. Since Insurance company has admitted the policy as on date of accident therefore respondent no. 3 is liable to pay the compensation amount.
25. There being no evidence of violation of the policy condition and there being no evidence to support the permitted defence U/s. 149(2) of the M.V. Act, I am unable to grant the recovery rights. Therefore, insurance company shall make good the compensation in terms of the accepted policy.
RELIEF
26. While granting the relief to petitioner, I am also to award the interest @ M.A.C. Petition No : 824/10 Page No. 11/14 7.5% p.a on the above said amount of Rs. 9,75,600/- from the date of filing of petition till realization of the amount.
27. In view of the above, I am directing to the respondent no. 3, the insurance company, to pay to the claimants a sum of Rs. 9,75,600/- towards compensation within one month. The respondent No. 3, insurance company shall also pay interest @ 7.5% p.a. on the total compensation amount from the date of petition till realization to the petitioners.
28. For the aforesaid reasons, I pass the following award :-
AWARD
29. In view of the above the petition is allowed. The respondent No. 3, insurance company is liable to pay the compensation of Rs. 9,75,600/- within one month. The respondent No. 3, insurance company shall also pay interest @ 7.5% p.a. (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioners. The compensation amount shall be apportioned amongst the petitioners, along with corresponding interest in the following manner : -
(a) Petitioner no. 1 will get Rs. 97,560/-.
(b) Petitioner no. 2 will get Rs. 8,78,040/-.
30. The award amount along with interest be deposited by insurance company with UCO Bank, Nodal Officer through Nodal Officer, Karkardooma Branch, within 30 days in the petitioners' accounts.
31. Upon the aforesaid amount being deposited, the UCO Bank is directed to keep the amount awarded to petitioners in fixed deposit in the following manner:-
Petitioner no. 1 i. The amount awarded to petitioner no. 1 shall be released to petitioner no. 1 by transferring the same to his savings bank account.M.A.C. Petition No : 824/10 Page No. 12/14
Petitioner no. 2 i. Fixed deposit of Rs. 1,50,000/- for a period of two year, four years, six years, eight years and rest of the amount shall be released to the petitioner no. 2 with immediate effect by transferring the same to her saving bank account.
32. The interest on the aforesaid FDR shall be paid monthly by automatic credit of interest in the savings account of petitioners.
33. Withdrawal from the aforesaid account shall be permitted to the petitioner after due verification and the bank shall issue photo identity card of petitioner to facilitate identity.
34. No cheque book be issued to the petitioners without the permission of the court.
35. The original fixed deposit receipts shall be retained by the bank in the safe custody. However, the original pass book shall be given to the appellant along with photocopy of the FDRs.
36. The original fixed deposit receipts shall be handed over to the petitioner on the expiry of the period of the FDRs.
37. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of the court.
38. Half yearly statement of account be filed by the bank in the court.
39. On the request of the petitioner, the bank shall transfer the saving account to any other branch of UCO bank according to the convenience of the petitioners.
M.A.C. Petition No : 824/10 Page No. 13/1440. The petitioners shall furnish all the relevant documents for opening of the saving bank account and fixed deposit account to Nodal Officer, UCO Bank, Karkardooma Court, Delhi.
41. List for reporting compliance on 15.02.2012.
42. A copy of this order be given dasti to concerned parties.
ANNOUNCED IN THE OPEN ( Arvind Kumar )
COURT ON 15.12.2011 Presiding Officer: MACT:
Karkardooma Court
Delhi
M.A.C. Petition No : 824/10 Page No. 14/14