Delhi District Court
Sunaina vs Ravindra Yadav & Ors. Page No. 1 Of 34 on 20 November, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.373/14
Date of Institution: 10.12.2013
IN THE MATTER OF:
1. Sunaina
W/o Late Shri Awadh Kishore Sahu
2. Anil Kumar
S/o Late Shri Awadh Kishore Sahu
3. Sunil Kumar
S/o Late Shri Awadh Kishore Sahu
4. Rinki Sahu
D/o Late Shri Awadh Kishore Sahu
5. Batasiya
W/o Shri Shiv Bachan Sahu
(since deceased)
6. Shiv Bachan Sahu
S/o Late Shri Mishri Lal
All r/o H. No.RZ10A, Gali No.1
Mohan Block, West Sagarpur
New Delhi 110046.
(Petitioners No.3 to 4 being minor
represented through their mother and
natural guardian/ Sunaina). ....Petitioners
Suit No.373/14
Sunaina Vs. Ravindra Yadav & Ors. Page No. 1 of 34
Versus
1. Ravindra Yadav
S/o Shri Vanshu Yadav
R/o Village Faridpur
PS Raunapar
Distt. Azamgarh, U. P.
2. Shri Niwas
S/o Shri Badri Ram
R/o H. No.342, Sector10
Housing Board Colony
Faridabad
Haryana 121001.
Also at 17/6, Mathura Road
Faridabad
Haryana 121001.
3. M/s ICICI Lombard General Ins. Co. Ltd.
Space No.315, 3rd Floor
Aggarwal City Mall
Plot No.4, Road No. 44
Pitampura 110034. ...Respondents
Final Arguments heard : 21.10.2014
Award reserved for : 20.11.2014
Date of Award : 20.11.2014
Suit No.373/14
Sunaina Vs. Ravindra Yadav & Ors. Page No. 2 of 34
AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioners that on the evening of 02.07.2013, the deceased Awadh Kishore Sahu along with his colleague was coming to his house from his company, after finishing his duty as pillion rider on motorcycle No.DL9SAC4983 (Pulsar) driven by Shankar Dayal Gupta slowly, vigilantly and by following the traffic rules. It is averred that at about 8.10 p.m. when they reached near Bharat Petrol Pump, NH8, Bilaspur, Gurgaon, then all of a sudden the offending vehicle bearing No.HR38P0886 (canter), which was being driven by the driver/respondent No.1 at a very high speed rashly, negligently, without blowing any horn, neglecting the traffic rules came from the back side and hit the motorcycle with a great force. Due to the violent impact they fell down on the road and the deceased sustained grievous injuries all over his body. He was immediately taken to Medanta Hospital, Gurgaon, after a lot of efforts the life of the deceased could not be saved and he succumbed on the same day due to the injuries sustained in the accident. It is averred that the post mortem of the deceased was conducted at mortuary of General Hospital, Gurgaon. After the post mortem the dead body of the deceased was taken by the petitioners and his relatives. It is stated that in respect of the accident FIR No.210/13 under Sections 279/337/304A IPC was Suit No.373/14 Sunaina Vs. Ravindra Yadav & Ors. Page No. 3 of 34 registered at PS Bilaspur, Gurgaon.
3. It is averred that at the time of the accident, the deceased was 50 years of age, with very good health and physique and he was not suffering from any disease or ailment. It is averred that the deceased was a Project Manager at Advancetech Engineering Pvt. Ltd., 57 Miles Stone, Near Bilaspur Chowk, Pataudi Road, Distt. Gurgaon, Haryana and he was getting salary of Rs. 80,000/ per month. It is averred that the petitioners are the widow, children and parents of the deceased and they are the only legal heirs of the deceased and there is no other legal heir of the deceased except the petitioners. It is averred that the deceased was the sole bread earner in the family and the petitioners have no source of income. It is averred that the petitioners also incurred about Rs.50,000/ on transportation and last rites of the deceased. It is averred that the principle of resipsaloquitar is attracted in the case because the accident took place due to the rash and negligent driving on the part of the driver of the offending vehicle. It is averred that the respondents being the driver, owner and insurer of the offending vehicle are jointly, severally and vicariously liable to compensate the petitioners. It is prayed that an amount of Rs.2,00,00,000/ be awarded as compensation in favour of the petitioners and against the respondents.
4. Written statement was filed on behalf of the respondents No.1 and 2 taking the preliminary objections that the contents of the petition are vague Suit No.373/14 Sunaina Vs. Ravindra Yadav & Ors. Page No. 4 of 34 and based on imagination and the petitioners have no cause of action to file the petition against the respondents No.1 and 2. It is averred that the claim petition against the respondents No.1 and 2 is bogus, malafide and untenable in law and the same has been filed with a view to extract huge amount of compensation from the respondents No.1 and 2 illegally and unlawfully without any right, title or interest. It is averred that the amount claimed is grossly inflated and has no legal basis and is highly exaggerated and very imaginary. It is averred that the alleged offending vehicle Canter No.HR38P0886 was insured with the respondent No.3/ICICI Lombard General Insurance Co. Ltd. at the time of the alleged accident and as such the respondents No.1 and 2 are not liable to pay any compensation to the petitioners. It is averred that the respondent No.1 being the driver was holding a valid and genuine driving license and the respondent No.2 was having valid and genuine permit; therefore the respondents No.1 and 2 could not be held liable to indemnify the petitioners. The averments made in the claim petition were denied. It is averred that the accident did not occur due to the driving of the respondent No.
1. The place, date and time of accident were not admitted to be correct. It is averred that no such accident as stated by the petitioners was ever caused in the area of PS Bilaspur, Distt. Gurgaon at about 8.10 p.m. on 02.07.2013. It is averred that the petition is filed against the respondents No.1 and 2 for extraction of illegal money.
Suit No.373/14
Sunaina Vs. Ravindra Yadav & Ors. Page No. 5 of 34
5. Written statement was filed on behalf of the respondent No.3 taking the preliminary objections that the petition does not disclose any cause of action against the respondent No.3. The respondent No.3 denied all the liabilities as the insurer, since the insured vehicle No.HR38P0886 was being driven by a person without permission or authority of the insured and the vehicle was used contrary to the terms of the insurance policy, permit, fitness and RC of the vehicle. It is averred that the vehicle No.HR38P0886 was being driven by its driver without holding a proper and valid driving licence and the owner of the vehicle was having knowledge that the driver was not holding a valid and effective DL and had wilfully breached the terms and conditions of the policy. It is averred that the petition is bad for nonjoinder of necessary parties since the owner, driver and insurer of vehicle No.DL9SAC4983 involved in the accident are necessary parties. It is averred that the petitioners are not the legal heirs/ only legal heirs of the deceased. The averments made in the claim petition were denied. It is averred that the vehicle No.HR38P0886 was insured in the name of Shri Niwas vide policy No.3003/59652769/03/000 valid for the period from 01.06.2013 to 31.05.2014. However, the liability of the company was subject to the terms and conditions of the policy. It is averred that the claim of the petitioners is false and vexatious to their own knowledge and the amount claimed is totally vague, illusory and highly excessive in the given circumstances of the case. It is averred that the accident if any, was caused due to the negligence on the part of the deceased himself while driving his motorcycle and he was not holding a valid and effective driving licence at the Suit No.373/14 Sunaina Vs. Ravindra Yadav & Ors. Page No. 6 of 34 time of the accident which caused the accident.
6. From the pleadings of the parties, the following issues were framed vide order dated 01.04.2014:
1. Whether the deceased sustained fatal injuries in the accident which occurred on 02.07.2013 at about 8.10 p.m near Bharat Petrol Pump, NH8, Bilaspur, Gurgaon, caused by rash and negligent driving of vehicle No.HR 38P 0886 (Canter) driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP.
2. Whether the LRs of the deceased are entitled for compensation? If so, to what amount and from whom?
3.Relief.
The matter was listed for conciliation but the same did not succeed. An application was filed on behalf of the petitioners stating that the petitioner No.5 Batasiya had expired and as such her name was directed to be deleted from the array of parties vide order dated 21.10.2014.
7. On behalf of the petitioners the petitioner No.1 appeared in the witness box as PW1 and led her evidence by way of affidavit which is Ex.PW1/1 reiterating the averments made in the claim petition. She stated that the salary of her husband was increasing with the passage of time and was being incurred on them. She stated that all the petitioners were depending upon the Suit No.373/14 Sunaina Vs. Ravindra Yadav & Ors. Page No. 7 of 34 income of the deceased, there was no other legal heir of the deceased. Copy of educational certificates, experience certificates of the deceased are Ex.PW1/1A to Ex.PW1/1H and copy of ITR of the deceased for the assessment year 201112 is Ex.PW1/1J, copy of voter identity card of the deceased is Ex.PW1/12, copy of voter identity card of the petitioner No.1 is Ex.PW1/13, copy of Aadhar card of Rinki is Ex.PW1/14, copy of Aadhar card of Sunil is Ex.PW1/15 and copy of school certificate of Anil Kumar is Ex.PW1/16.
8. Shri Shankar Dayal Gupta appeared in the witness box as PW2 and led his evidence by way of affidavit which is Ex.PW2/A. PW2 deposed that on the most unfortunate evening of 02.07.2013, he along with his colleague Late Awadh Kishore Sahu was coming to their respective houses from their company, M/s Advancetech Engineering Pvt. Ltd., 57 Miles Stone, Near Bilaspur Chowk, Pataudi Road, Gurgaon, Haryana after finishing duties, the deceased Late Awadh Kishore Sahu was a pillion rider on the motorcycle No.DL9SAC4783 (Pulsar) driven by PW2 slowly, vigilantly and by following the traffic rules. He stated that at about 8.10 p.m. when they reached near Bharat Petrol Pump, NH8, Bilaspur, Gurgaon, then all of a sudden the offending vehicle bearing No.HR38P0886 (canter), which was being driven by the driver/respondent No.1 at a very high speed rashly, negligently, without blowing any horn, neglecting the traffic rules came from the back side and hit the motorcycle with a great force. Due to the violent impact they both fell down Suit No.373/14 Sunaina Vs. Ravindra Yadav & Ors. Page No. 8 of 34 on the road and the wheels of the offending vehicle ran over the deceased so he sustained fatal injuries all over his body. He stated that the deceased was immediately taken to Medanta Hospital, Gurgaon, after a lot of efforts the life of the deceased could not be saved and he succumbed to the injuries on the same day. He stated that the post mortem of the deceased was conducted at mortuary of General Hospital, Gurgaon. After post mortem the dead body of the deceased had been taken by his relatives. He stated that after the accident public gathered on the spot and someone from the public called the police. The driver of the offending vehicle stopped the offending vehicle after the accident and saw the spot and thereafter he fled from the spot understanding the seriousness of the accident. He stated that the police came at Medanta Hospital and recorded his statement regarding the accident. He stated that the accident took place due to the rash and negligent driving of the offending vehicle and FIR was registered against the driver in respect of the accident. Copy of DL is Ex.PW2/1.
9. Shri Surender Kumar Sharma, Accountant at Advancetech Engineering (P) Ltd. was produced in the witness box as PW3 and he had brought the record which is Ex.PW3/1 to Ex.PW3/8. He identified the signatures of Shri Santosh Sharma, HR Accountant in their company and stated that he signed in his presence on Ex.PW3/1 to Ex.PW3/3 and Ex.PW3/5. He also identified the signatures of Shri Ajay Mathur, Manager Accounts in their company to sign in his presence on Ex.PW3/4. PE was Suit No.373/14 Sunaina Vs. Ravindra Yadav & Ors. Page No. 9 of 34 closed on 15.7.2014. No RW was produced and RE was closed on 2.9.2014.
10. I have heard the Learned Counsel for the petitioners as well as the Learned Counsels for the respondents and perused the record. The petitioners were also examined on 23.9.2014 and 21.10.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
11. My findings on the specific issues are as under:
Issue No. 1
12. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that the deceased sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"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 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 Suit No.373/14 Sunaina Vs. Ravindra Yadav & Ors. Page No. 10 of 34 deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code 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 deceased.
These documents are sufficient proofs to reach the 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."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
Suit No.373/14
Sunaina Vs. Ravindra Yadav & Ors. Page No. 11 of 34
13. The case of the petitioners is that on the evening of 02.07.2013, the deceased Awadh Kishore Sahu along with his colleague was coming to his house from his company, after finishing his duty as pillion rider on motorcycle No.DL9SAC4983 (Pulsar) driven by Shankar Dayal Gupta slowly, vigilantly and by following the traffic rules. It was averred that at about 8.10 p.m. when they reached near Bharat Petrol Pump, NH8, Bilaspur, Gurgaon, then all of a sudden the offending vehicle bearing No.HR38P0886 (canter), which was being driven by the driver/respondent No.1 at a very high speed rashly, negligently, without blowing any horn, neglecting the traffic rules came from the back side and hit the motorcycle with a great force. Due to the violent impact they fell down on the road and the deceased sustained grievous injuries all over his body. He was immediately taken to Medanta Hospital, Gurgaon, after a lot of efforts the life of the deceased could not be saved and he succumbed on the same day due to the injuries sustained in the accident. It was averred that the post mortem of the deceased was conducted at mortuary of General Hospital, Gurgaon. After the post mortem the dead body of the deceased was taken by the petitioners and his relatives. It was stated that in respect of the accident FIR No.210/13 under Sections 279/337/304A IPC was registered at PS Bilaspur, Gurgaon. PW1 in paras 2 and 3 of her affidavit Ex.PW1/1 had deposed to that effect. Likewise PW2 in paras 2 to 5 of his affidavit Ex.PW2/A had deposed to that effect.
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Sunaina Vs. Ravindra Yadav & Ors. Page No. 12 of 34
14. The petitioners have filed the certified copy of the criminal record consisting of copy of charge sheet; copy of FIR; copy of DL of the respondent No.1, copy of the RC of the offending vehicle and fitness, copy of insurance policy of the offending vehicle, copy of authorisation certificate of NP of the offending vehicle, copy of post mortem report and MLC of the deceased. As per the FIR No.210/13 under sections 279/337/304A IPC, PS Bilaspur the case was registered on the basis of complaint of Shankar Dayal Gupta who has been examined as PW2 in the present case and who had stated about the manner of the accident.
15. The respondents No.1 and 2 had filed the written statement averring that the accident did not occur due to the driving of the respondent No.1. The place, date and time of accident were not admitted to be correct. It was averred that no such accident as stated by the petitioners was ever caused in the area of PS Bilaspur, Distt. Gurgaon at about 8.10 p.m. on 02.07.2013. During crossexamination by the learned counsel for the insurance company PW1 stated that she is not an eye witness of the accident. Thus PW1 stated that she was not an eye witness to the accident. The petitioners in support of their case had examined PW2 who was stated to be an eye witness to the accident and on whose complaint the FIR was registered. During cross examination by the learned counsel for the insurance company PW2 admitted that the alleged accident took place on the main Delhi Jaipur highway. He admitted that the highway is 6 lane highway. He stated that he was driving his Suit No.373/14 Sunaina Vs. Ravindra Yadav & Ors. Page No. 13 of 34 motorcycle on the left side of the road. He admitted that there was heavy traffic on the said road. He stated that he was driving his motorcycle at about 40 k.m/hr. He admitted that the vehicles move at a fast speed on the highway. He denied the suggestion that there was any service road at the spot of the accident. He denied the suggestion that he had suddenly braked his motorcycle due to which the accident took place or that the driver of the truck was not negligent and he tried to stop the truck by putting the brakes but due to the suddenness of the accident he could not put the brakes. He stated that the police had recorded his statement. He denied the suggestion that the accident had occurred due to his negligence. During crossexamination by the learned counsel for the respondents No.1 and 2 PW2 stated that he had been knowing the deceased for the previous 7 years. He stated that there was no fixed time of the duty getting over. He stated that he had left the office at 8.00 p.m. on the date of the accident. The accident had taken place about 1 ½ kms from his office. He stated that the accident had taken place at 8.10 p.m. He stated that he had also sustained injuries in the accident. He stated that he had seen the number of the offending vehicle. He stated that he had called in his factory and the car had come from the factory which had taken the deceased to the hospital. He stated that to his knowledge, there was no other hospital between the spot of accident and Medanta. He denied the suggestion that he was deposing falsely in order to help the family of the deceased who was his friend.
Suit No.373/14
Sunaina Vs. Ravindra Yadav & Ors. Page No. 14 of 34
16. PW2 thus admitted that the alleged accident took place on the main Delhi Jaipur highway and that the highway is 6 lane highway. He stated that he was driving his motorcycle on the left side of the road. He admitted that there was heavy traffic on the said road and he was driving his motorcycle at about 40 k.m/hr. He admitted that the vehicles move at a fast speed on the highway. He denied the suggestion that there was any service road at the spot of the accident and there is also nothing to show the same. A suggestion was put to him that he had suddenly braked his motorcycle due to which the accident took place or that the driver of the truck was not negligent and he tried to stop the truck by putting the brakes but due to the suddenness of the accident he could not put the brakes which he denied. He stated that there was no fixed time of the duty getting over and he had left the office at 8.00 p.m. on the date of the accident. The accident had taken place about 1 ½ kms from his office at 8.10 p.m. He stated that he had also sustained injuries in the accident. He stated that he had seen the number of the offending vehicle. As such nothing material has come out in the crossexamination of PW2 to doubt his testimony.
17. The respondent No.1 who is the driver and the respondent No.2 who is the owner of the offending vehicle have not produced any evidence to dispute the version put forth by the petitioners. Further the criminal record has been placed on record which shows that in the FIR the number of the offending vehicle was clearly stated. In Basant Kaur and others v. Chattar Pal Singh Suit No.373/14 Sunaina Vs. Ravindra Yadav & Ors. Page No. 15 of 34 and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondents have also not adduced any evidence to prove any other version of the accident. There is absolutely no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.HR38P0886. In view of the testimony of PWs and the documents on record which have remained unrebutted, the negligence of respondent No.1 has been prima facie proved.
18. It was stated that due to the violent impact the deceased and PW2 fell down on the road and the deceased sustained grievous injuries all over his body. He was immediately taken to Medanta Hospital, Gurgaon, after a lot of efforts the life of the deceased could not be saved and he succumbed on the same day due to the injuries sustained in the accident. It was averred that the post mortem of the deceased was conducted at mortuary of General Hospital, Gurgaon. After the post mortem the dead body of the deceased was taken by the petitioners and his relatives. The post mortem report of the deceased is on record as per which the cause of death was shock and haemorrhage following ante mortem blunt force impact consistent with the manner as alleged. Thus it stands established that the deceased had sustained injuries in the alleged accident due to which he died. This issue is accordingly decided in favour of the petitioners and against the respondents.
Suit No.373/14
Sunaina Vs. Ravindra Yadav & Ors. Page No. 16 of 34 Issue No.2
19. Since issue No.1 has been decided in favour of the petitioners they would be entitled to compensation as per the provisions of the Act. The petitioners are the legal representatives of the deceased being the wife, children and parents of the deceased. PW1 was crossexamined on the point of dependency and during crossexamination by the learned counsel for the insurance company PW1 stated that she is a housewife. She stated that her elder son is in final year of college. She stated that her fatherinlaw is not working and he resides in the village. She stated that her motherinlaw also resides in the village. She stated that her husband did not have any brother. Thus PW1 stated that she is a housewife. During examination by the Tribunal the petitioner No.1 Smt. Sunaina stated that she is 47 years old at present. She stated that she has 3 children and she is a housewife. Thus being the wife the petitioner No.1 would be regarded as dependent on the deceased. PW1 had stated that her elder son is in final year of college. During examination by the Tribunal the petitioner No.2 Anil Kumar stated that he is 21 years old at present. He stated that he is doing Hotel Management in third year. The educational documents in respect of the petitioner No.2 are on record which show his date of birth to be 4.2.1993. As such he would have been more than 20 years on the date of the accident i.e. 2.7.2013 and being a major he cannot be regarded as dependent on the deceased. Similarly as per the age documents in respect of the petitioner No.3 Sunil Kumar he would Suit No.373/14 Sunaina Vs. Ravindra Yadav & Ors. Page No. 17 of 34 have been a major on the date of the accident and as such he would not be regarded as dependent on the deceased. However the petitioner No.4 Rinki was a minor on the date of the accident. Thus being a minor the petitioner No. 4 would be regarded as dependent on the deceased.
20. The petitioner No.5 had expired during the pendency of the proceedings but being the mother she would be regarded as dependent on the deceased on the date of the accident. PW1 had stated that her father in law is not working and he resides in the village. During examination by the Tribunal the petitioner No.6 Shiv Bachan Sahu stated that he is 72 years old and that he was not working. He stated that he does not have any child apart from the deceased. However as per the voter identity card in respect of the petitioner No.6 his year of birth was 1946 and as such he would have been around 67 years old on the date of the accident i.e. 2.7.2013. The father is not regarded as a dependent and in the present case there is nothing to show that the petitioner No.6 was prevented by any factor from working and as such he would not be regarded as dependent on the deceased. As such the petitioner No.1 being the wife and the petitioner No.4 being the minor child and the petitioner No.5 (since deceased) being the mother would be regarded as dependent on the deceased.
21. The petitioners have claimed loss of dependency on the basis that at the time of the accident, the deceased was 50 years of age, with very good Suit No.373/14 Sunaina Vs. Ravindra Yadav & Ors. Page No. 18 of 34 health and physique and he was not suffering from any disease or ailment. It was averred that the deceased was a Project Manager at Advancetech Engineering Pvt. Ltd., 57 Miles Stone, Near Bilaspur Chowk, Pataudi Road, Distt. Gurgaon, Haryana and he was getting salary of Rs.80,000/ per month. It was averred that the deceased was the sole bread earner in the family and the petitioners had no source of income. The petitioner No.1 in paras 4 and 5 of her affidavit Ex.PW1/1 had deposed to that effect. She stated that the salary of her husband was increasing with the passage of time and was being incurred on them. She stated that all the petitioners were depending upon the income of the deceased, there was no other legal heir of the deceased. Copy of educational certificates, experience certificates of the deceased are Ex.PW1/1A to Ex.PW1/1H and copy of ITR of the deceased for the assessment year 201112 is Ex.PW1/1J. During crossexamination by the learned counsel for the insurance company PW1 stated that her husband was working in Bilaspur, Haryana. She did not know whether an appointment letter was issued to her husband by his employer. She did not know the name of the employer of her deceased husband. She stated that her husband was getting his salary through cheque. She stated that her husband was maintaining a Bank Account. She did not remember the name of the bank of her deceased husband. She had not filed any statement of account of her deceased husband. She stated that her husband was income tax payee. She did not know for how long he was filing ITR. She did not know whether she had filed the copy of ITR in the Court record or not. She denied the suggestion that her Suit No.373/14 Sunaina Vs. Ravindra Yadav & Ors. Page No. 19 of 34 husband was not earning Rs.80,000/ p.m. or that he was employed with M/s Advance Tech Engineering Pvt. Ltd. She stated that she could file the copy of statement of bank account of her deceased husband. She denied the suggestion that she had deliberately not filed the copy of passbook as the income of her husband was not Rs.80,000/ per month. Thus PW1 did not know whether an appointment letter was issued to her husband by his employer and she did not know the name of the employer of her deceased husband. She stated that her husband was getting his salary through cheque and that her husband was maintaining a Bank Account but she did not remember the name of the bank of her deceased husband and she had not filed any statement of account of her deceased husband. She stated that her husband was income tax payee though she did not know for how long he was filing ITR. The petitioners had placed on record a copy of the pay slip of the deceased for the month of June 2013 and copy of Form No.16 and copy of ITR of the deceased for the assessment year 20112012.
22. The petitioners in support of their case had examined PW3 who had brought the record which is Ex.PW3/1 to Ex.PW3/8. PW3 had placed on record the copy of salary slip of the deceased for the month of June, 2013, for May, 2013, for April, 2013, final settlement after the death of the deceased, copy of appointment letter dated 17.3.2003 issued to the deceased, authority letter in favour of PW3, joining letter of the deceased and copy of EPF documents in respect of the deceased. During crossexamination by the Suit No.373/14 Sunaina Vs. Ravindra Yadav & Ors. Page No. 20 of 34 learned counsel for the insurance company PW3 stated that he had not brought the complete service record of the deceased namely Awadh Kishore Sahu. He had not brought the application for appointment along with documents tendered by the deceased Awadh Kishore Sahu with the company before his appointment. He could not tell the DOB of the deceased Awadh Kishore Sahu. He admitted that the right of salary of the deceased was as per the salary slips Ex.PW3/1 to Ex.PW3/3. He admitted that the premium towards insurance was being paid by the company and there was no deduction of the salary of the employee towards premium of insurance. He admitted that the amount of workman compensation was also paid by the company and there was no deduction from the salary of the employee towards instalment or premium of amount of workman compensation. He admitted that the employee Shri Awadh Kishore Sahu was being paid Rs.17,000/ p.m. towards conveyance and Rs.5,000/ p.m. towards travel allowance. He stated that the salary was being paid through ECS. He had not brought the muster role and payment register of Shri Awadh Kishore Sahu. He admitted that the deduction towards income tax was not mentioned in the salary slip Ex.PW3/1 to Ex.PW3/3. He denied the suggestion that the record brought by him was forged and fabricated. Thus PW3 stated that he had not brought the application for appointment along with documents tendered by the deceased Awadh Kishore Sahu with the company before his appointment though he had placed on record a copy of the appointment letter and copy of acceptance and joining letter of the deceased.
Suit No.373/14
Sunaina Vs. Ravindra Yadav & Ors. Page No. 21 of 34
23. PW3 admitted that the right of salary of the deceased was as per the salary slips Ex.PW3/1 to Ex.PW3/3. He admitted that the employee Shri Awadh Kishore Sahu was being paid Rs.17,000/ p.m. towards conveyance and Rs.5,000/ p.m. towards travel allowance. He stated that the salary was being paid through ECS though he had not brought the muster role and payment register of Shri Awadh Kishore Sahu. He admitted that the deduction towards income tax was not mentioned in the salary slip Ex.PW3/1 to Ex.PW3/3. Thus PW3 was crossexamined on the deductions made from the salary of the deceased. Ex.PW3/1 is the salary slip of the deceased for the month of June, 2013 and as per the same the total salary of the deceased was Rs.66,855/ and not Rs.80,000/ as stated by the petitioners. Further the same includes Rs.17,000/ towards conveyance, Rs.3855/ towards medical allowance and Rs.5,000/ towards travelling allowance and the same cannot be included for computation of the income of the deceased for the loss of dependency. Further there is no deduction towards income tax shown in the pay slip and as per settled law the actual income is taken after deducting the income tax. Thus the income of the deceased for the computation of loss of dependency would be taken as Rs.37,000/ per month.
24. The learned counsel for the insurance company had argued that the amount of Rs.1 lakh paid as workman compensation on the death of the deceased was liable to be deducted from the compensation payable to the petitioners as also the amount of Rs.10 lakh paid as insurance. The learned Suit No.373/14 Sunaina Vs. Ravindra Yadav & Ors. Page No. 22 of 34 counsel for the insurance company in this regard has relied upon the judgment of the Hon'ble High Court of Bombay in The Oriental Insurance Co. Ltd. v. Meena Tukaram Jadhav & Ors. First Appeal No.573/2013 decided on 19.12.2013 along with other matters. In the said case reliance was placed upon the judgment of the Hon'ble Supreme Court in Helen C. Rebello and others v. Maharashtra State Road Transport Corporation 1999 ACJ 10 where it was observed:
"34....Thus, the application of general principle under the common law of loss and gain for the computation of compensation under this Act must correlate to this type of injury or death viz., accidental. If the words 'pecuniary advantage' from whatever source are to be interpreted to mean any form of death under this Act it would dilute all possible benefits conferred on the claimant and would be contrary to the spirit of the law. If the 'pecuniary advantage' resulting from death means pecuniary advantage coming under all forms of death then it will include all the assets, movable, immovable, shares, bank accounts cash and every amount receivable under any contract. In other words, all heritable assets including what is willed by the deceased, etc. This would obliterate both all possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. By such an interpretation the tort feasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meager liability. In our considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accidental death. Thus, under the present Act whatever pecuniary advantage is received by the claimant, from whatever Suit No.373/14 Sunaina Vs. Ravindra Yadav & Ors. Page No. 23 of 34 source, would only mean which comes to the claimant on account of accidental death and not other form of death. The constitution of the Motor Accident Claims Tribunal itself under section 110 is as the section states:
"....for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to,..."
35. Thus, it would not include that which claimant receives on account of other forms of death, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correlation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that would have come to the claimant even otherwise, could not be construed to be the 'pecuniary advantage', liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received (sic) out of such insurance on the happening of such incidence may be an amount liable for deduction. However, our legislature has taken note of such contingency, through the proviso of section 95. Under it, the liability of the insurer is excluded in respect of injury or death arising out of (sic and) in the course of employment of an employee."
The Hon'ble High Court of Bombay then observed:
"22 Thus, in the case of an ordinary life insurance, if on account of death of person in a motor accident, the legal representatives receive the amount under the policy, the same cannot be excluded as such benefit has no correlation to the accidental death. The said amount would have come to the legal Suit No.373/14 Sunaina Vs. Ravindra Yadav & Ors. Page No. 24 of 34 representatives even in the case of natural death. But if the employee is insured by his employer against injury or death arising out of an accident, any amount received under such policy on accidental death would be liable for deduction from compensation. This law laid down in the case of Helen Rebello has not been disturbed by the Apex Court in the subsequent decision in the case of Sunil Sharma and others."
In the case before the Hon'ble High Court of Bombay the deceased was the beneficiary of the insurance scheme of SCI for its employees, the premium was paid by SCI which was not recovered from him and an amount of Rs. 14,00,000/ had been received against the said insurance claim purely on account of the death of the deceased in the accident and the contention that the sum of Rs.14,00,000/ was the pecuniary advantage received by the legal representatives of the deceased on account of accident was accepted. In the present case PW3 admitted that the premium towards insurance was being paid by the company and there was no deduction of the salary of the employee towards premium of insurance. He admitted that the amount of workman compensation was also paid by the company and there was no deduction from the salary of the employee towards instalment or premium of amount of workman compensation. Thus the premium towards insurance was paid by the company and the amount of workman compensation was also paid by the company. However nothing has been brought on record to show that the said amounts were paid to the family of the deceased purely on account of the death of the deceased in the accident whereas in the case before the Hon'ble High Court of Bombay the witness had stated during cross Suit No.373/14 Sunaina Vs. Ravindra Yadav & Ors. Page No. 25 of 34 examination that the legal representatives of the deceased had received the said amount purely on account of his death in the accident while in the present case no such suggestion was put to PW3 and as such there is nothing to show that the insurance was an accident insurance or a general insurance and the amounts paid thereby cannot be treated as pecuniary advantage received by the legal representatives of the deceased on account of the accident.
25. It is the case of the petitioners that the deceased was 50 years of age at the time of the accident and it was so stated in the claim petition and PW1 had also deposed to that effect. During crossexamination by the learned counsel for the insurance company PW1 stated that the date of birth of her husband is written in the documents filed by her. She admitted that the date of birth of her husband is 03.04.1961. The documents placed on record also show the same. Thus the date of birth of the deceased was 3.4.1961. As such the deceased would have been more than 52 years old on the date of the accident i.e. 2.7.2013. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case the multiplier of 11 applies for calculating the loss of income where the age of the deceased is 51 to 55 years.
26. As observed above the dependents on the deceased are his wife, one child and mother. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case as the number of dependents was 3 there would be Suit No.373/14 Sunaina Vs. Ravindra Yadav & Ors. Page No. 26 of 34 1/3rd deduction towards personal and living expenses of the deceased. As regards the future prospects in Rajesh and Ors. v Rajbir Singh and Ors. 2013 (6) SCALE 563 the Hon'ble Supreme Court held as under:
"11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% 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% 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% in case the deceased was in the age group of 40 to 50 years."
12.In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
Suit No.373/14
Sunaina Vs. Ravindra Yadav & Ors. Page No. 27 of 34 Thus the petitioners would be entitled to addition of 15% of the income towards future prospects as the deceased was more than 50 years of age. Accordingly the loss of dependency as per the monthly income i.e. Rs. 37,000/ is calculated as under :
Rs.37,000/ + Rs.5,550/ (15% future prospects) = Rs.42,550/ X 12 (annual) X 11 (multiplier) - 18,72,200/ (1/3rd towards personal expenses) = Rs.37,44,400/ rounded off to Rs.37,44,000/.
27. The petitioners are also entitled to compensation for loss of love and affection, loss of consortium, loss of estate and funeral expenses. It was stated that a sum of Rs.50,000/ was spent upon transportation and last rites of the deceased. During crossexamination by the learned counsel for the insurance company PW1 denied the suggestion that she had not spent Rs.
50,000/ on transportation and last rites of the deceased. However there is nothing to show the same.
The total compensation is determined as under:
Loss of dependency : Rs.37,44,000/
Love and affection : Rs.1,00,000/
Loss of Consortium : Rs.50,000/
Suit No.373/14
Sunaina Vs. Ravindra Yadav & Ors. Page No. 28 of 34
Loss of Estate : Rs.10,000/
Funeral expenses : Rs.10,000/
Total : Rs.39,14,000/
Thus, the total compensation would amount to Rs.39,14,000/. RELIEF
28. The petitioners are awarded a sum of Rs.39,14,000/ (Rs.Thirty Nine Lacs Fourteen Thousand only) along with interest @ 9% per annum from the date of filing of the claim petition till its realization including, interim award, if any already passed against the respondents and in favour of the petitioners. The petitioner No.5 has already expired. The petitioner No.2 Anil Kumar and the petitioner No.3 Sunil Kumar would be entitled to 10% share in the awarded amount. The petitioner No.4 Rinki would also be entitled to 10% share in the awarded amount. The petitioner No.6 Shri Shiv Bachan Sahu would be entitled to 20% share in the awarded amount and the petitioner No.1 Smt. Sunaina would be entitled to 50% share in the awarded amount.
29. 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 Suit No.373/14 Sunaina Vs. Ravindra Yadav & Ors. Page No. 29 of 34 of the directions contained in the above judgment the award amount is to be disbursed as follows:
a) The entire share of the petitioner No.4 be kept in FDR in UCO Bank, Patiala House Court, New Delhi till she attains the age of majority and for 3 years thereafter. 50% of the share of the petitioners No.2, 3 and 6 be released to them by transferring it into their savings account in UCO Bank, Patiala House Court and 50% of the share of the petitioners No.2, 3 and 6 be kept in FDRs in UCO Bank, Patiala House Court, New Delhi for a period of 3 years. 20% of the share of the petitioner No.1 be released to her by transferring it into her savings account and the remaining amount out of her share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the 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.
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. Suit No.373/14
Sunaina Vs. Ravindra Yadav & Ors. Page No. 30 of 34
b)The respondent No.3 is directed to deposit the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Smt. Sunaina, Anil Kumar, Sunil Kumar, Rinki Sahu and Shiv Bachan Sahu within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondent No.3 shall be liable to pay further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the savings account of the petitioner No.1.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner No.1 after due verification and the bank shall issue photo identity card to the petitioner No.1 to facilitate her identity.
g) No cheque book shall be issued to the petitioner No.1 without the permission of the court.
Suit No.373/14
Sunaina Vs. Ravindra Yadav & Ors. Page No. 31 of 34
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioner No.1 along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
i) The original fixed deposit receipts shall be handed over to the petitioner No.1 on the expiry of the period of the fixed deposit receipts.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
k) On the request of the petitioners, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioners.
l) The petitioners 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.
30. The petitioners shall file two sets of photographs along with their 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 Suit No.373/14 Sunaina Vs. Ravindra Yadav & Ors. Page No. 32 of 34 Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount.
APPORTIONMENT OF LIABILITY
31. The respondent No.1 is the driver and the respondent No.2 is the owner of the offending vehicle and the respondent No.3 is the insurer in respect of the offending vehicle. Thus the respondents No.1, 2 and 3 are held jointly and severally liable. No evidence has been led on behalf of the respondent No.3. Respondent No.3 i.e. ICICI Lombard General Insurance Co. Ltd. being the insurance company in its reply had stated that the vehicle No.HR38P0886 was insured in the name of Shri Niwas vide policy No.3003/59652769/03/000 valid for the period from 01.06.2013 to 31.05.2014. There is no evidence on behalf of respondent No.3 to show that there was any violation of the rules and terms of policy by the respondents. Hence, the respondent No.3 being the insurance company in respect of the offending vehicle is liable to pay the compensation on behalf of the respondents No.1 and 2. The respondent No.3 being the insurer is directed to deposit the award amount within 30 days with interest at the rate of 9% from the date of filing of the claim petition till its realization in Suit No.373/14 Sunaina Vs. Ravindra Yadav & Ors. Page No. 33 of 34 UCO Bank, Patiala House Courts, New Delhi failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
32. 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. The respondent No.3 shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 20.02.2015.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House. File be consigned to Record Room.
Announced in open court
on this 20th day of November, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No.373/14
Sunaina Vs. Ravindra Yadav & Ors. Page No. 34 of 34