Delhi District Court
Smt. Santosh Kumari W/O Late Sh. ... vs Sh.Ranjeet Ram S/O Sh. Jagdish Ram on 1 February, 2010
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IN THE COURT OF SHRI GURVINDER PAL SINGH
JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL(WEST)
TIS HAZARI COURTS,DELHI
(Suit No. 341/09)
1.Smt. Santosh Kumari w/o Late Sh. Shreepal
2.Baby Arti Rani d/o Late Sh. Shreepal
3.Master Pushpender s/o Late Sh. Shreepal
4.Baby Sujata d/o Late Sh. Shreepal
5.Master Akash s/o Late Sh. Shreepal
6.Smt. Javitri Devi w/o Late Sh. Ram Gulam
All r/o H. No. 98, Vill. Aadpur, Distt. Badayun, U.P.
Second Add:- Vill. Ahrola, Distt. Badayun, U.P.
(petitioner No.2 to 5 being minors are represented
through their mother Smt. Santosh Kumari/ natural Guardian/
petitioner No.1)
...... Petitioners
VERSUS
1. Sh.Ranjeet Ram s/o Sh. Jagdish Ram,
r/o H. No. A-34, Ram Chander Enclave,
Peepal Wala Road, Mohan Garden
Uttam Nagar, New Delhi (Driver)
2. Sh. Tota Ram s/o Sh. Kallu
r/o Vill. Bhawanipur, Post Bagrun,
Tehsil-Bisauli, Distt. Badaun, U.P.
3. The New India Assurance Co. Ltd.
12/1, Jeevan Raksha Building, 2nd Floor, Asaf Ali
Road, New Delhi (Insurer)
....... RESPONDENTS
Date of filing of the petition : 29/01/08
When reserved for judgment : 20/01/10
Date of final judgment/ award : 01/02/10.
JUDGMENT / AWARD
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Petitioners have claimed compensation of Rs. 15,00,000/-( Rupees Fifteen Lakhs) vide claim petition u/s 166 & 140 of the Motor Vehicles Act,1988 for fatal injuries sustained by Sh. Shreepal on 19/11/07 at about 2.00 a.m(night), at S-Block, near Khandelwal Provisional Store, Gandhi Chowk, Uttam Nagar, Delhi , when tractor trolley bearing No. UP-24D-3391, driven by respondent No.1 rashly and negligently hit him causing his fall on the road.
2. Respondent No.1, 2 and 3 are the driver, owner and insurer respectively of the offending vehicle.
3. Respondents were summoned and served.
4. For non-appearance, respondent No.2 was proceeded exparte vide order dated 20/10/08 of my Ld. Predecessor.
5. Despite opportunities, written statement was not filed by respondent No.1.
6. Respondent No.3 filed the written statement and denied the claim of the petitioner.
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7. Respondent No.3, however, admitted the fact that vehicle No. bearing No. UP-24-D 3391 was insured with it vide Policy No. 421602/31/07/01/0003856 valid from 19/10/07 to 18/10/08
8. Vide orders dated 20/10/08 of my Ld. predecessor, following issues were framed:-
1. Whether the petitioner had sustained injuries on 19.11.07 at about 2.00 a.m. at Near S Block, Khandelwal Provision Store, Gandhi Chowk, Uttam nagar, Delhi due to rash and negligent driving of respondent No.1 while driving vehicle bearing registration number UP-24D-3391?
2. Whether the petitioner is entitled to any compensation? If so, to what amount and from whom?
3. Relief.
9. Petitioner No.1 as PW-1 and Sh. Bhure Singh as PW-2 are the examined petitioner witnesses.
10. Despite opportunity, no respondent evidence was led. 4
11. I have heard submissions of Ld. Counsels for the parties, perused the record and given my thoughts to the contentions put forth. My issue-wise findings are as under:-
ISSUE NO.1
12. PW-2 testified that he alongwith the deceased was going on Tractor Trolley No. UP-24D-3391 on the fateful night after loading debris. On reaching near Gandhi Chowk, Uttam Nagar, respondent No.1, the driver of the said vehicle forgot the way, street. To show the way, the deceased got down from the tractor. While the deceased was showing the way, in the meanwhile, respondent No.1 sped up the tractor at high speed, rashly and negligently , without indication and proper look out and hit the deceased with great force, causing his fall on the road. The left front wheel of the said vehicle ran over the body of the deceased. The deceased received serious injuries and was removed to DDU Hospital where he succumbed to his injuries during the course of the treatment.
13. Neither the respondent No.1 stepped into the witness box to testify in contrary to the version of PW-2 nor is there any other evidence on record to disbelieve or discredit the version of PW-2, either in toto or in particular.
14. A driver of a mechanically propelled vehicle is under bounden duty to observe necessary caution for avoiding striking other vehicles, persons, the 5 users of the road ahead. Having failed to observe such necessary care and caution, being oblivious of said duty, respondent No.1 was berserk locomotion since he struck the vehicle of the deceased at the spot causing him fatal injuries. Respondent No.1 was thus negligent.
15. The version of PW-2 is lent corroboration by the version and information provided in the Accident Information Report in form-54 wherein the column for particulars of the driver of the offending vehicle, name of respondent No.1 is written and AIR aforesaid is accompanied by the criminal case documents including FIR No. 875/07u/s 279/304-A IPC, P.S. Uttam Nagar.
16. As per the copy of the post mortem report, Ex. PW1/5 on the body of the deceased, the cause of death has been opined to be ' hemorrhagic shock due to severe injury to lung and liver followed by Road traffic accident'
17. Above discussion leads me to the conclusion that petitioners have been able to prove that deceased Sh. Shreepal had sustained fatal injuries due to said rash and negligent driving on the part of respondent No.1. Accordingly, issue No.1 is decided in favour of the petitioners and against the respondents.
ISSUE NO. 2 6
18. The appropriate method of calculating the compensation in fatal cases is multiplier method. In catena of decisions, the Hon'ble Supreme Court of India had held that in India the multiplier method is appropriate for calculation of compensation. It was so enunciated by their Lordship Wright in "Davies Vs. Powell Duffregn Associated Collieries Ltd" reported in 1942 AC601, that the appropriate method to calculate compensation is the multiplier method. In the cases of 'General Manager, Kerela State Road Transport Corporation, Trivendram Vs Susamma Thomas (Mrs.) & Ors', (1994) 2 SCC 176; ( 2 ) 'Managing Director, TNSTC Ltd. Vs K.I. Bindu & Ors'. (2005) 8SCC 473; (3) 'Gobald Motor Service Ltd. & Anr Vs RMK Veluswami & Ors', AIR 1962 SC 1 and of late, in the case of 'Syed Basheer Ahamad & Ors. V Mohd Jameel and Anr'. in Civil Appeal No. 10 of 2009, decided by the Division Bench of the Hon'ble Supreme Court on 06/01/2009, also in the case of ' Smt. Sarla Verma & ors Vs. Delhi Transport Corporation & Anr, reported in III (2009) ACC 708 (SC), decided by the Division Bench of the Hon'ble Supreme Court on 15/04/09, the payment of compensation in lump-sum to legal representatives of deceased by multiplier method has been approved.
19. Starting point for calculating amount of compensation to be paid to dependents of deceased in a motor accident claim is the amount of monthly 7 income which the deceased was earning; then there is an estimate of what was required for his personal and living expenses. The balance will generally be turned into lump sum by taking certain number of years of purchase. The choice of multiplier is ascertained by the age of the deceased or that of the claimant whichever is higher.
THE MULTIPLICAND
20. In terms of the averments in the claim petition, PW-1, testified that her deceased husband was a Motor Mechanic, (self employed), earning Rs. 8000/- per month. As per, Ex. PW1/2, the mark statement of High School Examination and as per, Ex. PW1/3, the certificate of High School Examination, 1990 of Madhyamik Shiksha Parishad, Uttar Pradesh, the deceased was a matriculate having date of birth 11/05/1971.
21. Petitioners have not placed on record any document regarding the expertise of the deceased as a Motor Mechanic or any document regarding monthly earnings of the deceased, nor have proved the same. In absence of any cogent evidence of monthly earnings of the deceased, the monthly income of the deceased is determined on the basis of the minimum wages notified under the Minimum Wages Act by the Delhi Government in the category of a matriculate person, which was Rs. 3964/- on the day of accident.
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22. Noting that to neutralize increase in cost of living and price index, minimum wages are increased from time- to-time. Minimum wages tend to increase by 100% every 10 years.
23. It is now well settled that while estimating future loss of income, the Court has to take into account increase in minimum wages due to inflation and rise in price index. [ See (1) K. Narsimha Murthi V. The Manager, Oriental Insurance Co. Ltd. & Anr.,reported in 2004 ACJ 1109; (2)Oriental Insurance Co. Ltd. Vs. Vijay Kumar Mittal, reported in III(2007)ACC 676 and (3) Santosha Devi Vs. Abdul Kareem & ors, in MAC Appeal No.440/2009, decided on 08/10/09 by Hon'ble Mr. Justice J. R. Midha]
24. Thus, Tribunal has to consider future increase in minimum wages of deceased while awarding compensation to dependents of deceased.
25. Benefit of future increase in the income of the deceased is to be given. Thus mean average income of the deceased is determined as Rs. 5946/- per month [{minimum wage+ double the minimum wage} divided by 2] for purpose of computation of compensation in this case.
26. The widow of the deceased, petitioner No.1; the four minor children of the deceased viz., petitioners No.2 to 5 and the mother of the deceased as 9 petitioner no.6 were the six dependents on the earnings of the deceased.
27. In terms of law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra), since there were six dependents on the earnings of the deceased, the deduction towards personal and living expenses of the deceased, would be one-fourth (1/4th ), out of his monthly earnings. The deduction towards the personal and living expenses of the deceased out of his said monthly income would be Rs. 1486/50 p.( Rs. 5946 divided by 4). The loss of monthly dependency to the legal representatives of the deceased accordingly is Rs. 4459/50 p.(Rs. 5946/- minus Rs. 1486/50 p). MULTIPLIER
28. As per, Ex. PW1/3, the school certificate of deceased, his date of birth being 11/05/1971, the deceased was of age 36 ½ years as on the date of accident.
29. As per copy of identity card of Election Commission of India, mark PX1, the widow of the deceased was of age 29 years as on the date of accident.
30. The respective ages of the minor petitioners No. 2 to 5, children of the deceased mentioned in the claim petition are 8 years; 6 years; 4 years and 2 years respectively.
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31. As per the copy of the identity card of Election Commission of India, Mark PX-2, the mother of the deceased was of age 54 years as on the date of accident.
32. Keeping in mind the young age of the widow of the deceased and respective ages of the minor children of the deceased, it would be expedient in the interest of justice to adopt the multiplier in terms of the age of the deceased and not in terms of the age of the mother of the deceased, since the widow and the children of the deceased have a long life ahead of them to be led and various kinds of expenses are required to be met.
33. In terms of the law laid by the Apex Court in case of 'Sarla Verma & Ors (Supra) and considering the age 36 ½ years of deceased, the multiplier of 15( for the age group of 36 to 40years), is to be applied.
34. The total loss of dependency of the petitioners would accordingly be Rs. 8,02,710/-(Rs. 4459/50 p.x 12x 15).
COMPENSATION FOR LOSS OF CONSORTIUM
35. In terms of law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra), the claimant, the widow of deceased, petitioner No.1 is 11 entitled to sum of Rs. 10,000/- under the head of loss of consortium. COMPENSATION FOR LOSS OF ESTATE 36 In terms of law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra), the claimants are entitled to sum of Rs. 10,000/- under the head of loss of estate.
COMPENSATION TOWARDS FUNERAL EXPENSES
37. In view of the law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra) , the claimants are entitled to Rs. 5,000/- under this head.
COMPENSATION FOR LOSS OF LOVE AND AFFECTION.
38. No amount would suffice to compensate the loss of love and affection to petitioners. Yet, relying upon the pronouncements of Hon'ble Mr. Justice J. R. Midha in case of ' Rajesh Tyagi & ors Vs. Jaibir Singh & Ors as FAO No. 842/2003, orders dated 08/05/09, the claimants, six in number, are entitled to sum of Rs. 10,000/- each i.e., totalling Rs. 60,000/- as loss of love and affection.
39. In view of the above discussion, the total compensation to which the petitioners are entitled to comes as under:-
1. Compensation for Loss of dependency Rs. 8,02,710/-
2. Compensation for loss of consortium Rs. 10,000/-
3. Compensation for loss of estate Rs. 10,000/-
4. Compensation for funeral expenses Rs. 5,000/-
5. Compensation for loss of love and affection Rs. 60,000/ _____________ 12 Rs. 8,87,710/ Total payable sum ______________ LIABILITY
40. Ld. counsel for petitioner argued that the respondent No.1, driver of the offending vehicle was driving the vehicle without any driving license and since in the copy of the charge-sheet there is a mention of offence u/s 3/181 M.V. Act, it was a case of the vehicle driven by a driver without license and insurer was not liable to pay the compensation.
41. In terms of law laid in the case of National Insurance Company Ltd Vs Swaran Singh & Ors reported in 2004 A CJ 1, it is trite that where the insurers relying upon the violations of the provisions of law by the assured takes an exception to pay the assured or third party , they must prove a willful violation of the law by the assured.
42. Though there is mention of section 3/181 M.V. Act , in the title of column No.7 of the referred charge-sheet of the criminal case but adverting to the Accident Information Report, filed in form-54, it is revealed that in column No.7, the particulars of the driving licence of respondent are given and even the copy of the driving licence of respondent No.1 is annexed with the Accident Information Report. Even the text in the body of the referred charge- sheet finds no mention of the arrayed accused driving said vehicle without 13 license.
43. Rule 7 of the Motor Accidents Claims Tribunal Rules, 2008, embodies inter alia that the contents of reports submitted to the Claims Tribunal by the the Investigating police officer shall be presumed to be correct, and shall be read in evidence without formal proof till proved to the contrary.
44. The insurer, respondent No.3 has not led any evidence nor given even any notice u/o 12 R 8 CPC to the driver or vehicle owner,insured for production of any valid driving licence as on the date of accident, nor has even placed on record the report of its private investigator nor led any cogent evidence to prove that the insured / vehicle owner had committed any breach of any term or condition of the policy. The insurer has accordingly miserably failed to prove of any breach of any term or condition committed by the insured/ vehicle owner. Accordingly, insurer can neither be exonerated for its liability nor is entitled for any recovery rights whatsoever. The insurer is liable to pay the compensation sum to the claimants/ petitioners accordingly.
45. In view of the aforesaid discussions, it is hereby held that petitioners are entitled to Rs. 8,87,710/-as compensation alongwith interest @ 7.5 % per annum from the date of filing of the petition till its realization from 14 the respondents, payable by the insurer, respondent No.3 Relief
46. In view of the above discussions, issue No.2 is decided in favour of the petitioners and against the respondents. Petitioners are thus, entitled to Rs. 8,87,710/-as compensation alongwith interest 7.5% per annum from the date of filing of the petition till its realization from the respondents, payable by insurer, respondent No.3.
APPORTIONMENT OF COMPENSATION
1.Smt. Santosh Kumari (wife) Rs. 3,87,710/-
2.Baby Arti Rani (minor daughter) Rs. 1,00,000/-
3.Master Pushpender (minor son) Rs. 1,00,000/-
4.Baby Sujata (minor daughter) Rs. 1,00,000/-
5.Master Akash (minor son) Rs. 1,00,000/-
6.Smt. Javitri Devi (mother) Rs. 1,00,000/-
47. Since the amount awarded should not be frittered away by beneficiaries owing to the ignorance, illiteracy etc., the Hon'ble Supreme Court of India in a case titled 'G. M. Kerala State Road Transport Corporation Vs. Susamma Thomas' reported in 1994(2) SCC 176, has laid guidelines pronouncing that in a case of compensation for death, it is appropriate that Tribunals do keep in mind the principles enunciated by this court in 'Union Carbide Corporation Vs. Union of India', 1991(4) SCC 584, in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation. Guidelines inter alia included of investment of 15 share of the claimants in FDRs in nationalized banks with conditions that bank will not permit any loan or advance on the fixed deposits and interest on the amount invested is paid monthly / periodically directly to the claimant and such investment may be made in more than one fixed deposit. In case of any exigency, claimants are at liberty to apply to Tribunal for withdrawal of such investment.
48. In terms thereof, out of the award amount, 50% amount of petitioner No. 1 be invested in shape of two FDRs of equal (almost) in the name of the said claimant/ petitioner for a period of 7 years in State Bank of India. 50% of the award amount of petitioner No. 6 be invested in shape of one FDR in the name of the said claimant/ petitioner for a period of 5 years in State Bank of India. The award amount of petitioners No. 2 to 5 (minor children of deceased) be invested in shape of FDRs in the name of the said claimants / petitioners till they attain the age of majority in State Bank of India. The FDRs shall have no facility of loan or advance. Petitioners can withdraw the interest monthly. Minor petitioners can so withdraw interest through her guardian mother, petitioner No.1. However, petitioners/claimants are at liberty to take steps for premature encashment in case of exigency, as per law laid before this Tribunal.
49. State Bank of India,Tis Hazari, has agreed to open Special Fixed Deposit Accounts for the victims of road accidents. 16
50. Aforesaid fixed deposits are to be made by State Bank of India, Tis Hazari in the following manner:-
(1) The State Bank of India,Tis Hazari, shall open separate Savings Accounts in the name of claimants and the entire interest on the aforesaid fixed deposits be credited in the said accounts.
(2) The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Savings Accounts. (3) Withdrawal from the aforesaid account shall be permitted to the claimants after due verification and the Bank shall issue photo identity Card /Pass Books with attested photographs to claim to facilitate their identity.
(4) No cheque book be issued to the claimants without the permission of this Court.
(5) Half yearly statement of account be filed by the Bank in this Court.
(6) The original FDRs shall be retained by the Bank in the Safe custody. However, the original Pass Book shall be given to the claimants alongwith the photocopy of the FDRs. (7) The original Fixed Deposit Receipts shall be handed over to the claimants at the end of the fixed deposit period. 17 (8) No loan, advance or withdrawal shall be allowed on the said FDRs without the permission of this Court. (9) On the request of the claimants, the Bank shall transfer the Savings Account to any other branch of State Bank of India according to the convenience of the claimants.
51. Respondent No.3, The New India Assurance Co. Ltd is directed to deposit the cheques in the names of the petitioners/claimants within 30 days.
File be consigned to Record Room.
Announced in open court (Gurvinder Pal Singh)
today i.e. 01/02/10 Judge, MACT(West)
Delhi.