Delhi District Court
Naveen Singh vs . Vishal Jain & Ors. on 21 December, 2018
Ten Year Old Matter
IN THE COURT OF SH. M. K. NAGPAL
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS
TRIBUNAL PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
NAVEEN SINGH VS. VISHAL JAIN & Ors.
MACP NO. 537/16 (Original No.1470/07)
Sh.Naveen Singh,
S/o. Sh.C.P. Singh,
R/o. 241, Sector 2, ITI Colony Doorbash Nagar,
Rai Bareily, U.P.
......Petitioner
Versus
1. Sh. Vishal Jain
S/o. S.C. Jain,
R/o. 7, Tolstoy Lane, Janpath, Delhi.
2. Smt. Rukmani Vohra
R/o. 7. Partap Building, Janpath Lane, Delhi.
3. National Insurance Co. Ltd.
Division No.XXII, 4th Floor, Pal Mohan House,
5/67, Padam Singh Road, Karol Bagh, New Delhi.
.....Respondents
Date of filing of petition : 13.08.2007
Date of framing of issues : 19.02.2018
Date of concluding arguments : 13.12.2018
Date of decision : 21.12.2018
AWARD/JUDGMENT
1. The claim for compensation raised in this petition relates to death of Ms. Kanwaljeet Kaur, i.e. wife of the petitioner herein, which was caused in an accident that took place on 05.07.2007 at around 11.45 PM, i.e. during the night of 5/6.07.2007, at Outer Circle of India Gate, Near C-Hexagon, Zakir Hussain Marg, New Delhi. The MACP No.537/16 Page no. 1 of 27 deceased at that time was riding on pillion on a motorcycle bearing registration no. RJ-082M-8409 being driven by one Rahul Jain, a friend of husband of the deceased, when a Hyundai Santro car bearing registration no. HR-26L-9245 allegedly being driven at fast speed by R-1 suddenly came from Nizammuddin side and had hit their motorcycle from behind. As a result thereof, both the occupants of the motorcycle fell on road and the deceased suffered injuries on her head and she was removed to RML Hospital with the help of R-1 and she subsequently, scummed to her injuries in the hospital on 14.07.2007. It is alleged that the above accident was caused due to rash and negligent driving of the above car by R-1 and the car was owned by R-2 and insured with R-3.
2. One FIR No.253/07 was registered on 06.07.2007 about the above accident at PS Tilak Marg for offences punishable under Sections 279/337 IPC. Subsequently, after death of deceased, Section 304-A IPC was also added to the case and on conclusion of investigation, a charge-sheet for offences punishable under Sections 279/304A IPC was also filed against R-1 in the court of Ld. MM concerned.
3. On perusal of records, it is found that this claim petition was originally filed by the petitioner on 13.08.2007 against R-1 only as the sole respondent because details of the owner and insurer of the said vehicle were not available with him. These details were furnished to him by the respondent subsequently and hence, R-2 & R-3 were also impleaded on record by the petitioner and even one amended petition was filed in this regard.
4. It is observed that presence of only R-1 & R-3 could be secured by this tribunal in the said petition and only WS of R-3 was filed on record by that time, when vide an order dated 15.09.2009 of MACP No.537/16 Page no. 2 of 27 this tribunal the petition was dismissed in default.
5. In the said WS/reply filed by R-3, they have duly admitted the issuance and existence of a valid policy of insurance in respect of the offending vehicle in the name of R-2, but claimed that their liability was only subject to terms and conditions of the said policy. Contributory negligence on the part of driver of the above motorcycle, on which the deceased was riding on pillion, was also alleged by R-3 in the said WS/reply, while further challenging his competency to drive the motorcycle in absence of a valid driving licence (DL) in his name having been filed on record. The issue of mis-joinder of parties is also found to have been raised in the said WS/reply.
6. It is further observed on perusal of records that thereafter, instead of filing an application for restoration of the said petition, one fresh petition being MACP No.472/13 was filed by the petitioner before this tribunal on 16.09.2014, i.e. after a long gap of around 5 years from dismissal of his first petition, and presence and WS/replies on behalf of all the three respondents was filed in the said petition on issuance of notices thereof. R-1 & R-2 in their joint reply in the said petition had though admitted that the above Santro car was driven by R-1 and owned by R-2 at the relevant date of accident, but it was submitted by them that the above accident did not take place with their car. It was pleaded by them that infact one other Maruti car was going in front of their above said Santro car and motorcycle of the deceased was hit by the said Maruti car and not by the Santro car and rather R-1 had helped the injured by taking her to hospital on humanitarian grounds. The issue of maintainability of a second claim petition after dismissal of the above first petition in respect of the same accident was also raised by them in their above MACP No.537/16 Page no. 3 of 27 WS/reply.
7. The reply filed by R-3 in this second claim petition was also on lines of their earlier reply in the first petition, in addition to raising the above issue of maintainability of a second petition by them also. It is further gathered from the records that they had even moved a separate application for dismissal of the said petition on the above ground.
8. In view of the above objections raised on behalf of the respondents regarding maintainability of the above second MACP No.472/13 filed by the petitioner, the said petition was ultimately withdrawn by the petitioner on 17.08.2015 and thereafter, on 06.05.2016, he had moved one application under Order 9 Rule 9 CPC seeking restoration of his earlier petition, which was dismissed in default on 15.09.2009. This application was allowed by this tribunal vide a detailed order dated 24.11.2017 and the earlier/first petition was restored back to its original number and position. However, it was also directed in the said order that the petitioner shall not be entitled to any interest on the claimed amount of compensation for the period w.e.f. 15.09.2009 till the date of said order. The above order of this tribunal has not been challenged further by any of the parties.
9. Vide order dated 19.02.2018, this tribunal had framed the following issues for disposal of this petition:-
1. Whether the petitioner sustained injuries in the accident which occurred on 06.07.2007 at about 11.45 pm at India Gate Outer Circle, Near C-Haxigon, Zakir Hussain Marg, New Delhi caused by rash and negligent driving of vehicle No. HR-26L-9245 driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP.
2.Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3.Relief.
MACP No.537/16 Page no. 4 of 27
10. The petitioner in support of his case examined on record himself as PW1 on 20.03.2018 and tendered his examination in chief by way of an affidavit Ex.PW1/A and also relied upon documents of the above criminal case as PW1/1 (colly) and a copy of his Aadhar Card as Ex.PW1/2 (colly). On 10.05.2018, he further examined on record one Sh. Mohinder Mehra as PW2, who has claimed himself to be an eye-witness of the above accident, but he has not supported the case of petitioner about the said accident having been caused by the above offending Santro car driven by R-1.
11. Thereafter, the petitioner was also permitted to lead some additional evidence in support of his claim and he again examined himself further in this case on 05.11.2018 and tendered in evidence his additional affidavit as Ex.PW1/A1 and further relied upon copies of the 10th class mark-sheet and certain other documents of his deceased wife as Mark A and Mark B (colly) respectively and these documents were directed to be exhibited only upon production of the originals thereof. The originals of these documents were also subsequently produced by him and these documents were then exhibited as Ex.PW1/3 and Ex.PW1/4 respectively.
12. I have heard the arguments advanced by Sh. Naveen Kumar Sharma, Ld. Counsel for the petitioners and Sh. Dwapayan Gupta, Ld. Counsel for R-3. I have also carefully perused the entire material available on record. However, none has appeared on behalf of the other respondents to address any arguments. My issue-wise findings are as under:-ISSUE NO. 1
13. As already discussed above, the petitioner has examined on record a total number of two witnesses in support of his claim. It is not the case of petitioner that he was accompanying his deceased MACP No.537/16 Page no. 5 of 27 wife at the relevant time of accident or had seen the above accident as admittedly his wife was riding on pillion on a motorcycle being driven by his friend named Rahul Jain. Even in his affidavit Ex.PW1/ A, he himself has stated specifically that he was out of India, i.e. in UAE, when the above accident took place. Hence, his testimony is not at all relevant for determination of the alleged rashness and negligence on the part of R-1 for causing the above accident. The above Rahul Jain has not been examined on record.
14. Coming to the testimony of PW2 Sh. Mohinder Mehra, he was examined as an eye-witness of the above accident and it is observed from perusal of records of the above criminal case tendered in evidence by the petitioner as Ex.PW1/1 (colly) that he was even cited as an eye-witness in the charge-sheet filed against R-1 in the said case. However, during his testimony before this tribunal, this witness has not supported the case of petitioner and has rather stated that the above accident was caused by the above Maruti car and it was not caused by the offending Santro car. The relevant extracts of the depositions made by this witness are being reproduced herein below:-
"I am an eye witness of the accident. I think that it was the day of 6th or 7th July of 2007, at about 11.30/12 in the night, when the accident took place infront of Amar Jawan Jyoti, India Gate. I was coming after taking dinner from restaurant at Pandara Road, Main Market, but I do not remember the name of restaurant. A santro car of silver colour was going ahead of me and a Maruti car was running ahead of the said Santro car and a motorcycle was running ahead of that Maruti car. The Maruti car struck against the motorcycle. The motorcyclist fell down and due to which a lady sustained injuries in her head. The santro car driver took the injured lady in the car to the hospital and I was following the said santro car. Thereafter, the said lady was got admitted in Dr. RML Hospital and I had given my mobile number to the attendant/nurse. My statement was not recorded by the police on the date of accident. However, I was called by the police in the police station after 10-15 days after the accident. I was asked about the accident, then I had informed the police that Sh. Vishal Jain had taken MACP No.537/16 Page no. 6 of 27 the injured to the hospital in his santro car. I have not told the police that Sh. Vishal Jain has caused the accident. I have not given any statement to the police that the accident was caused by Sh. Vishal Jain while driving his vehicle. Vol. The accident has been caused by the driver of Maruti car."
15. It is also observed that though this witness has not supported the case of petitioner and rather deposed against his case and demolished the roots thereof, but strangely enough, he is not found to have been confronted by Ld. Counsel representing the petitioner with his alleged previous statement recorded during investigation of the criminal case, in which he is stated to have attributed rash and negligent driving on the part of R-1 being driver of the offending Santro car and not against driver of the above Maruti car. This appears to be due to non pursuance of his claim properly by the Ld. Counsel representing the petitioner, which is also manifested from the fact that as a part of the documents tendered on record as Ex.PW1/1 (colly), not only the certified copies of FIR and charge- sheet etc. of the above criminal case were tendered in evidence, but the statement made by PW2 before the Ld. MM concerned on 09.05.2012 and the judgment of acquittal dated 07.09.2012 in the above criminal case were also tendered and exhibited as part of the said documents. It is observed that even despite the fact this witness had already turned hostile during the course of trial of the above criminal case long back on 09.05.2012, but still Ld. Counsel has chosen to examine him as a witness in this case on 10.05.2018.
16. However, still the above depositions of PW2 made before this tribunal can be ignored and case of the petitioner has to be appreciated otherwise in light of the other evidence led on record and the admitted factual and legal position as it is observed that this witness has turned hostile only subsequently, though during the course of investigation he had supported the statement made by the MACP No.537/16 Page no. 7 of 27 complainant Rahul Jain regarding the above accident having been caused by the above Santro car being driven by R-4. Even the above acquittal of R-1 in the criminal case is not binding for the purposes of proceedings before this tribunal. Reliance in this regard can be placed upon a judgment of the Hon'ble Delhi High Court in case of Delhi Transport Corporation & Anr. Vs. Navjyot Singh & Ors., 2015 LawSuit(Del) 1750. In this case, the Hon'ble High Court while reiterating the law laid by the Hon'ble Supreme Court in case of N.K.V. Bros. (P) Ltd. Vs. M. Kurumai Ammal, 1980 3 SCC 457 and some other judgments, has made the following observations:-
"8. It is no longer res integra that standard of proof of negligence in a criminal case and in a claim petition under Section 166 of the Motor Vehicles Act, 1988 (the Act) are different. It is also well settled that de hors acquittal of the driver in a criminal case, the Claims Tribunal is expected to make an independent inquiry to reach a conclusion whether the negligence on the part of driver of the offending vehicle had been proved on the touchstone of preponderance of probability. Reiterating these principles in N.K.V. Bros. (P) Ltd. v. M. Kurumai Ammal, (1980) 3 SCC 457, the Supreme Court held as under:-
"2.......The plea that the criminal case had ended in acquittal and that, therefore, the civil suit must follow suit, was rejected and rightly. The requirement of culpable rashness under Section 304-A IPC is more drastic than negligence sufficient under the law of tort to create liability"
9. A Single Judge of this Court in State of Haryana and Anr. v. Sh.Ajay Kumar & Ors., MAC APP.69/2005, decided on 12.11.2007 held as under:-
"...Similarly the acquittal of the driver of the offending vehicle of the appellant by the criminal court cannot be taken to have any adverse effect on the findings reached by the Tribunal in an independent compensation case. The MACT cases have to be decided on their own footings and the same are not dependant upon the result or an outcome of a criminal case....."
10. In Bimla Devi & Ors. v. Himachal Road Transport Corporation & Ors., (2009) 13 SCC 530, the Supreme Court reiterated that the test of standard of proof beyond reasonable doubt could not be applied in a claim petition under Section 166 of the Act and that the Claimants are expected to establish MACP No.537/16 Page no. 8 of 27 negligence on the touchstone of preponderance of probability.
11. The issue of negligence was discussed at great length by the Claims Tribunal in paras 9 to 11 of the impugned award which are extracted hereunder:-
9 Since, the present petition is registered as claim petition under Section 166(4) MV Act, it was incumbent upon the petitioners to establish the factum of negligence attributable to driver, Attar Singh. In the petition itself, it has been detailed that the accident occurred under the circumstances where R- 1, Attar Singh was plying the bus, which is a heavy vehicle, on the wrong side of the road due to disruption of traffic and closing of road from one side. Despite the above, the driver was not vigilant and in a head-on collision, struck against the maruti esteem. The above fact is also supported from the charge-sheet filed on record.
Interestingly, the charge-sheet has been prepared consequent to the FIR lodged at the instance of Raj Kumar, R1W2, the conductor of the bus (who has deposed in favour of respondent No.1- driver in the present petition). The conductor has in no unequivocal terms cited and stated the circumstances in which the accident occurred. From the date of registration of the FIR till the culmination of the criminal proceedings, at no stage, the conductor has denied and disputed his statement made to the police. Neither the contents nor the veracity of the statement has been put to any denial. Even at the stage when he was brought as a witness in the criminal proceedings, he admitted the factum and the accident having been caused by the driver, Attar Singh while plying the bus. He also clearly admitted the site plan which had been prepared at his instance and the photographs of the occurrence taken by the police. For the obvious reasons, the conductor, being an employee of DTC, the respondent herein, has made efforts to conceal the entire truth while making his deposition before the criminal court which fact is now clearly reflected in the conduct of his supporting the erring driver by siding with him as a witness. It be observed that HC Nawab Singh who also tendered his statement before the criminal court, clearly supported the investigation and also affirmed the factum of the statement made by Raj Kumar to him directly. The site plan and the photographs corroborate that the accident occurred on the road meant for plying the vehicles in the directions in which the deceased was plying his maruti esteem car. The photographs as well as the statement made by Attar Singh before this Tribunal, sufficiently shows the impact of the accident as after the accident, the maruti esteem was badly tangled with MACP No.537/16 Page no. 9 of 27 the bus in such a manner that it continued to be dragged for few metres with the bus and could be separated only with the assistance of external support on arrival of the police, resulting in immediate death of Inderpal Singh, driver of maruti esteem car, on the spot. Had the bus being plied at a normal manageable speed as is being claimed by the driver, Attar Singh, there was no occasion for the maruti esteem car to be so badly dragged for few metres. The width of the road is also reflective of the fact that the bus was being driven and maneuvered in the way leaving insufficient space for the vehicles coming from the opposite direction despite the two way traffic being managed on the same road by the police.
10 Merely because the driver has been acquitted by the criminal court, it would not absolve the respondents from the liability as the principles for imparting the compensation under the Motor Vehicles Act are neither akin nor identical to the rigors set for dispensation of justice in the criminal trial where the accused is to be held guilty only when the charges are proved beyond doubt. At the cost of repetition, it be stated that the present proceedings are inquisitorial in nature and are based on the principles of social justice. The object and intent of the legislature while drafting the present enactment has been benevolent and the same is to be made effective. Having regard to the above, more so when the sole witness before the criminal court was the conductor of the bus who turned hostile, no parity can be drawn between the factum of bringing home the guilt of the accused in the criminal proceedings and holding him liable in the present proceedings. It be observed that the family of victim cannot be deprived of what is just to them, merely because an employee under presumable compulsions have opted to change his version, as an after-thought and in a belated act without even disputing his earlier statement rendered immediately after occurrence to the IO.
11 It be further observed that the investigation conducted by the IO has not been put to any dispute. There is no averment that the IO has not conducted the investigation fairly and in unbiased manner. The IO, HC Nawab Singh has completed his investigation expeditiously and has filed the chargesheet after having collected sufficient material. In the circumstances above, I am of the view that sufficient material has been placed on record to indite the erring driver for having caused the accident due to rash and negligent act." The above law laid by the Hon'ble Delhi High Court in the MACP No.537/16 Page no. 10 of 27 case of Navjyot Singh & Ors. (supra) was also following by the Hon'ble High Court of Punjab & Haryana in its judgment dated 18.07.2016 in FAO No.17782016 in case of Bajaj Allianz General Insurance Company Ltd. Vs. Ranjit Kaur & Ors.
17. It is now well settled that the procedure followed for proceedings conducted by an accident Tribunal is similar to that followed by a civil court and in civil matters the facts are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this burden is even lesser than that in a civil case. In the case of Bimla Devi (supra), it has been observed by the Hon'ble Supreme Court that in a road accident case, the strict principles of proof as in a criminal case are not attracted. Relevant portion of the said judgment is reproduced as under:-
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
18. These observations were also quoted with approval in the subsequent judgment of the Hon'ble Supreme Court in case Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011). Recently in another case titled Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303 also the Hon'ble Supreme Court while discussing the MACP No.537/16 Page no. 11 of 27 entire law on the subject and also the previous judgments in cases of Bimla Devi and Parmeshwari (Supra) and also in cases of Minu B. Mehta and Anr. Vs. Balkrishna Ramchandra Nayan and Anr., 1977 A. C. J. 118, Oriental Insurance Co. Ltd. Vs. Meena Variyal and others, 2007 ACJ 1284 and Dulcina Fernandes and Ors. Vs. Joaquim Xavier Cruz and Anr., (2013) 10 SC 646 etc., has again reiterated that burden of proof placed upon the petitioners in such a claim petition is to be seen only on the touchstones of preponderance of probabilities and this burden will stand discharged even in the circumstances where the driver of the offending vehicle stood already charge-sheeted in the criminal case pertaining to the said accident and the documents of the criminal case establish involvement of the said vehicle in the accident and also the rashness and negligence on the part of driver thereof in causing the said accident. The relevant observations made by the Hon'ble Supreme Court in this case are being reproduced herein below:-
"16. The question is: whether this approach of the High Court can be sustained in law? While dealing with a similar situation, this Court in Bimla Devi (supra) noted the defence of the driver and conductor of the bus which inter alia was to cast a doubt on the police record indicating that the person standing at the rear side of the bus, suffered head injury when the bus was being reversed without blowing any horn. This Court observed that while dealing with the claim petition in terms of Section 166 of the Motor 18 Vehicles Act, 1988, the Tribunal stricto sensu is not bound by the pleadings of the parties, its function is to determine the amount of fair compensation. In paragraphs 1115, the Court observed thus:
" 11. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant's predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only MACP No.537/16 Page no. 12 of 27 on the basis of a postmortem report vis-a-vis the averments made in a claim petition.
12. The deceased was a constable. Death took place near a police station. The postmortem report clearly suggests that the deceased died of a brain injury. The place of accident is not far from the police station. It is, therefore, difficult to believe the story of the driver of the bus that he slept in the bus and in the morning found a dead body wrapped in a blanket. If the death of the constable had taken place earlier, it is wholly unlikely that his dead body in a small town like Dharampur would remain undetected throughout the night particularly when it was lying at a bus-stand and near a police station. In such an event, the court can presume that the police officers themselves should have taken possession of the dead body.
13. The learned Tribunal, in our opinion, has rightly proceeded on the basis that apparently there was absolutely no reason to falsely implicate Respondents 2 and 3. The claimant was not at the place of occurrence. She, therefore, might not be aware of the details as to how the accident took place but the fact that the first information report had been lodged in relation to an accident could not have been ignored.
14. Some discrepancies in the evidence of the claimant's witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying the burden of proof in terms of the provisions of Section 106 of the Evidence Act, 1872 as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by Respondents 2 and 3.
15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
(emphasis supplied)
17. The Court restated the legal position that the claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt cannot be applied by the Tribunal while dealing with the motor accident cases. Even in that case, the view taken by the High Court to reverse similar findings, recorded by the Tribunal was set aside.
MACP No.537/16 Page no. 13 of 27 Following the enunciation in Bimla Devi's case (supra), this Court in Parmeswari (supra) noted that when filing of the complaint was not disputed, the decision of the Tribunal ought not to have been reversed by the High Court on the ground that nobody came from the office of the SSP to prove the complaint. The Court appreciated the testimony of the eyewitnesses in paragraphs 12 & 13 and observed thus:
"12. The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh, PW 1. Such disbelief of the High Court is totally conjectural. Umed Singh is not related to the appellant but as a good citizen, Umed Singh extended his help to the appellant by helping her to reach the doctor's chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be disbelieved just because he did not file a complaint himself. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitised enough to appreciate the plight of the victim.
13. The other socalled reason in the High Court's order was that as the claim petition was filed after four months of the accident, the same is "a device to grab money from the insurance company". This finding in the absence of any material is certainly perverse. The High Court appears to be not cognizant of the principle that in a road accident claim, the strict principles of proof in a criminal case are not attracted......."
18. ***********
19. In Dulcina Fernandes (supra), this Court examined similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied as noted in Bimla Devi (supra).
20. ****************
21. *********** This Court in a recent decision in Dulcina Fernandes (supra), noted that the key of negligence on the part of the driver of the offending vehicle as set up by the claimants was required to be decided by the Tribunal on the touchstone of preponderance of probability and certainly not by standard of proof beyond reasonable doubt. Suffice it to observe that the exposition in the judgments already adverted to by us, filing of charge-sheet against respondent No.2 prima facie points MACP No.537/16 Page no. 14 of 27 towards his complicity in driving the vehicle negligently and rashly. Further, even when the accused were to be acquitted in the criminal case, this Court opined that the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal. Reliance placed upon the decisions in Minu B Mehta (supra) and Meena Variyal (supra), by the respondents, in our opinion, is of no avail. The dictum in these cases is on the matter in issue in the concerned case. Similarly, even the dictum in the case of Surender Kumar Arora (supra) will be of no avail. In the present case, considering the entirety of the pleadings, evidence and circumstances on record and in particular the finding recorded by the Tribunal on the factum of negligence of the respondent No.2, the driver of the offending jeep, the High Court committed manifest error in taking a contrary view which, in our opinion, is an error apparent on the face of record and manifestly wrong."
19. Coming back to the facts of the present case, it is not disputed that the above FIR of criminal case was registered against R-1 and he was also charge-sheeted in the said case and put on trial for offences punishable under Sections 279/304A IPC for causing death of deceased Smt. Kanwaljeet Kaur by his rash and negligent driving of Santro car. Further, though R-1 had earlier filed one joint reply with R-2 in the second petition no.472/13, which was subsequently dismissed was withdrawn, but he has not come forward to file any reply to this claim petition, either prior to its dismissal vide order dated 15.09.2009 or after its restoration vide order dated 24.11.2017 and has not even turned up to cross examine the witnesses of petitioner. He has also not even examined himself on record with regard to manner of the above accident, what to say of leading any other evidence, which could also not have been permitted for want of his valid pleadings on record. Hence, an adverse inference can also be drawn against the respondents on this aspect, in view of the law laid down in the case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, 2009 (3) AD (Delhi) 310.
MACP No.537/16 Page no. 15 of 27 20. Moreover, the case of the petitioner is further
corroborated by record of the above criminal case Ex.PW1/1 (colly), which includes copies of the site plan, seizure memos, inspection reports and photographs of the above two vehicles etc., which clearly show fresh damages on these vehicles corresponding to the manner of accident as alleged by the petitioner. There is also no plea of any of the respondents that the petitioner or deceased or the police officials had any motive or reason to falsely implicate R-1 in the above criminal case.
21. The death of deceased in the above accident has not been disputed and even otherwise it stands established on record from a copy of her postmortem report being relied upon by the petitioner as a part of the criminal record documents as Ex.PW1/1 (Colly).
22. Hence, in view of the above factual and legal discussion, it is held that the oral evidence led on record by the petitioner is duly substantiated by the documentary evidence and it stands proved by preponderance of probabilities that the above accident resulting into death of deceased Ms. Kanwaljeet Kaur was caused due to rash and negligent act of the respondent no.1 in driving the above offending car bearing registration no. HR-26L-9245, which was owned by the respondent no.2 and insured with the respondent no.3. This issue is accordingly decided in favour of the petitioner and against the respondents.
23. ISSUE NO.2 As already discussed above, the petitioner had tendered on record his two affidavits, i.e. one Ex.PW1/A and the other Ex.PW1/A1, in support of his claim. In affidavit Ex.PW1/A, though he has claimed that his deceased wife was earning a handsome MACP No.537/16 Page no. 16 of 27 monthly income of Rs.15,000/- and it was increasing day by day, but he did not disclose the source of said earnings of his wife in the above affidavit. However, by way of his additional affidavit Ex.PW1/A1, the petitioner has tendered on record, inter-alia, the documents Ex.PW1/4 (colly), which consist of a copy of one identity card of her deceased wife, copy of one deposit slip dated 07.02.2007 of one cheque in account of his wife in UTI Bank Ltd., ATM (Cell), New Delhi and a copy of one passbook of a joint account of him with his deceased wife in Dena Bank, Malviya Nagar, Jaipur.
As per the above identity card, his deceased wife was working as a Merchandiser with India Today Fashions, F-55, Malviya Industrial Area, Jaipur and date of issuance of above identity card is shown as 13.08.2004. The above deposit slip is in respect of one cheque of Rs.15,000/- in her above account of UTI Bank. Though, in the above passbook of the joint account of the petitioner with the deceased in Dena Bank, Jaipur, some entries are found to be there of deposit of Rs.15,000/- each by clearing of some cheques, but it cannot be inferred therefrom that the said entries were on account of salary amounts of the deceased or the cheques issued towards her salary amounts. It cannot be ignored that it was a joint account of the petitioner and the deceased and further entries of some other amounts, like Rs.10,000/-, Rs.10,667/- and Rs.5,267/- etc. are also shown to be there as deposits in the said passbook. Moreover, as stated above, these entries are of the year 2004 and the accident took place in the year 2007.
However, the above identity card of the deceased shows that she had earlier worked as a Merchandiser with a fashion house at Jaipur and the above deposit slip dated 07.02.2007 of one cheque of Rs.15,000/- in her UTI Bank Ltd. account in Delhi also appears to MACP No.537/16 Page no. 17 of 27 be in respect of a cheque issued by a fashion house named Fancy Fashions in Delhi, as is clear from the endorsement made on the said slip. Copy of one visiting card of some other merchandiser of this firm named Nidhi Thakur is also found to be placed on record as a part of the said documents Ex.PW1/4 (colly) to show existence of this firm. One handwritten letter by one Baljeet Singh Virk, claiming himself to be father of the deceased Kanwaljeet Kaur, addressed to the Bank Manager, UTI Bank, Pitampura Branch, Delhi has also been filed on record by the petitioner as part of the above documents and this letter contains a request of her father to settle the accounts of one account no. 040010100097510 in the name of her deceased daughter and it is the same account in which the above cheque of Rs.15,000/- was deposited vide the above said deposit slip. In the petition, it was claimed that the deceased was an employee of Fancy Fashions existing at B-1/F-3, Mohan Co-operative Indl. Estate, Mathura Road, New Delhi. Hence, by preponderance of probabilities, the petitioner has been able to prove that her deceased wife was earning Rs.15,000/- per month from the above said job/work with a fashion house/firm in Delhi at the relevant time of accident.
During the course of his cross-examination, the petitioner/PW1 has specifically admitted that even he himself had been earning handsomely around the time of accident as he stated that he had been employed through out after getting a diploma in fashion designing in the year 2002. He had stated specifically that from the year 2002 to 2006, he was working with B.L. International at Noida and earning around Rs.15,000/- pm and then he joined Mohan Overseas, Okhala and was earning around Rs.20,000/- to Rs.25,000/- pm and thereafter, he went to Dubai in a Paris Group LLC on 24.09.2007 and was earning Rs.40,000/- pm. He came back MACP No.537/16 Page no. 18 of 27 in the year 2010 and thereafter, he joined Matrix Clothing Pvt. Ltd., where he was still working at the time of making his statement in the court and stated to be earning approximately Rs.80,000/- pm. Thus, it is clear from the above that the petitioner as well as his deceased wife were both working at the relevant time of accident and it can be said that they were not financially dependent upon each other. It is also an admitted fact that they were also not having any issue born out of their marriage.
The law with regard to grant of compensation to a non dependent spouse has been well laid down by the Hon'ble Karnataka High Court in case of A. Manavalagan Vs. A. Krishnamurthy and Ors., 1 (2005) ACC 304/2005 ACJ 1992 and the same has also been reiterated by the Hon'ble Delhi High Court in case Keith Rowe Vs. Prashant Sagar & ors., MAC APP. No.601/2007 as under:-
19. We may summarise the principles enunciated, thus:
(i) The law contemplates two categories of damages on the death of a person.
The first is the pecuniary loss sustained by the dependant members of his family as a result of such death. The second is the loss caused to the estate of the deceased as a result of such death. In the first category, the action is brought by the legal representatives, as trustees for the dependants beneficially entitled. In the second category, the action is brought by the legal representatives, on behalf of the estate of the deceased and the compensation, when recovered, forms part of the assets of the estate. In the first category of cases, the Tribunal in exercise of power under Section 168 of the Act, can specify the persons to whom compensation should be paid and also specify how it should be distributed (Note: for example, if the dependants of a deceased Hindu are a widow aged 35 years and mother aged 75 years, irrespective of the fact that they succeed equally under Hindu Succession Act, the Tribunal may award a larger share to the widow and a smaller share to the mother, as the widow is likely to live longer). But in the second category of cases, no such adjustments or alternation of shares is permissible and the entire amount has to be awarded to the benefit of the estate. Even if the Tribunal wants to specify the sharing of the compensation amount, it may have to divide the amount strictly in accordance with the personal law governing succession, as the amount awarded and recovered forms part of the estate of the deceased.
(ii) Where the claim is by the dependants, the basis for award of compensation is the loss of dependency, that is loss of what was contributed by the deceased to such claimants. A conventional amount is awarded towards loss of expectation of life, under the head of loss to estate.
(iii) Where the claim by the legal representatives of the deceased who were not dependants of the deceased, then the basis for award of compensation is the loss to the estate, that is the loss of savings by the deceased.
MACP No.537/16 Page no. 19 of 27 A conventional sum for loss of expectation of life, is added.
(iv) The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalising it by multiplying it by an appropriate multiplier. But, the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependants claim loss of dependency, and in cases where the claimants who are not dependents claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases.
20. The following illustrations with reference to the case of a deceased who was aged 40 years with a monthly income of Rs. 9000/ will bring out the difference between cases where claimants are dependents and cases were claimants are not dependents.
(i) If the family of the deceased consists of a dependant wife and child, normally one-third will be deducted towards the personal and living expenses of the deceased. The balance of Rs. 6000/- per month (or Rs. 72000/- per annum) will be treated as contribution to the dependent family. The loss of dependency will be arrived by applying a multiplier of
14. The loss of dependency will be Rs. 10,08,000/- plus Rs. 10,000/- under the head of loss of Estate.
(ii) If the family of the deceased was larger, say consisting of dependent parents, wife and two children, necessarily the deceased would spend more on his family and the deduction towards personal and living expenses of the deceased will H.R.ink to one-fifth instead of one-third (Note: In Gulam Khader v. United India Insurance Co., Ltd., - ILR 2000 Kar 4416 details of this illustration have been given). Therefore the deduction toward personal and living expense would be Rs. 1800/- per month (one- fifth of Rs. 9000/-) and contribution to the family would be Rs. 7200/- per month or Rs. 86,400/- per annum. Thus loss of dependency will be Rs. 12,09,600/- (by applying the multiplier of 14). The award under the head of loss of estate would be Rs. 10000/-.
(iii) If the deceased was a bachelor with dependent parents aged 65 and 60 years, normally 50% will be deducted towards personal and living expenses of the deceased. This is because a bachelor will be more care free as he had not yet acquired a wife or child and therefore would tend to spend more on himself. There was also a possibility of the bachelor getting married in which event the contribution to parents will get reduced. Therefore the contribution to the family (parents) will be Rs. 4500/- per month or Rs. 54000/- per annum. As the multiplier will be 10 with reference to age of the mother, the loss of dependency will be Rs. 5,40,000/-. Loss of Estate would be a conventional sum of Rs. 10,000/-. Note: The above three illustrations relate to cases where the claimants are dependants. The said illustration demonstrate that even though the income of the deceased and age of the deceased are the same, the 'loss of dependency' will vary, having regard to the number of dependants, age of the dependants and nature of dependency. The ensuing illustrations relate to cases where the legal heirs of the deceased are not dependants.
(iv) If the deceased is survived by an educated employed wife earning an amount almost equal to that of her husband and if each was maintaining a separate establishment, the question of 'loss of dependency' may not arise. Each will be spending from his/her earning towards his living and personal expenses. Even if both pool their income and spend from the common income pool, the position will be the same. In such a case the amount spent for personal and living expenses by each spouse from his/her income will be comparatively higher, that is tH.R.ee-fourth of MACP No.537/16 Page no. 20 of 27 his/her income. Each would be saving only the balance, that is one fourth (which may be pooled or maintained separately). If the saving is taken as one-fourth (that is 25%), the loss to the estate would be Rs. 2250/- per month or Rs. 27000/- per annum, By adopting the multiplier of 14, the loss to estate will be Rs. 3,78,000/-.
Note: The position would be different if the husband and wife, were both earning, and living together under a common roof, sharing the expenses. As stated in BURGESS v. FLORENCE NIGHTINGALE HOSPITAL (1955(1) Q.B. 349), 'when a husband and wife, with separate incomes are living together and sharing their expenses, and in consequence of that fact, their joint living expenses are less than twice the expenses of each one living separately, then each, by the fact of sharing, is conferring a benefit on the other'. This results in a higher savings, say, one-third of the income; In addition each spouse loses the benefit of services rendered by the other in managing the household, which can be evaluated at say Rs. 1,000/- per month or Rs. 12,000/- per annum). In such a situation, the claimant (surviving spouse) will be entitled to compensation both under the head of loss of dependency (for loss of services rendered in managing the household) and loss to estate (savings to an extent of one- third of the income that is Rs. 3,000/- per month or Rs. 36000/- per annum). Therefore, the loss of dependency would be 12000x14=168,000/- and loss to estate would be 36000x14=504,000/-. In all Rs. 6,72,000/- will be the compensation.
(v) If the deceased was a bachelor and the claimants are two non- dependent brothers/sisters aged 47 years and 45 years with independent income, the position would be different. As the deceased did not have a 'family', the tendency would be to spend more on oneself and the savings would be hardly 15%. If the saving is taken as 15% (Rs. 1350/- per month), the annual savings would be Rs. 16,200/- which would be the multiplicand. The multiplier will be 13 with reference to the age of the claimants and the loss of estate would be Rs. 2,10,600/- per annum.
Though the quantum of savings will vary from person to person, there is a need to standardise the quantum of savings for determining the loss to estate (where the claimants are not dependants) in the absence of specific evidence to the contrary. The quantum of savings can be taken as one-third of the income of the deceased where the spouses are having a common establishment and one-fourth where the spouses are having independent establishments. The above will apply where the family consists of non-dependant spouse/children/parents. Where the claimants are non-dependant brothers/sisters claiming on behalf of the estate, the savings can be taken as 15 % of the income. The above percentages, one of course, subject to any specific evidence to the contrary led by the claimants."
(Emphasis supplied) The above judgment talks about calculation of compensation under the head of loss of estate and not under the head loss of dependency in such a case, though the compensation under the head loss of dependency may also be awarded in addition to the compensation under the head loss of estate in case they both were living under a common roof and sharing the expenses. It is observed that in claim petition, the address of the deceased is given MACP No.537/16 Page no. 21 of 27 to be of Lajpat Nagar, New Delhi and she was also working in the above fashion house at Mathura Road, New Delhi, whereas the petitioner was living in Rai Bareily, U.P. Hence, it is clear that at the relevant time of accident, they both were not residing under a common roof and were maintaining their separate kitchens.
Hence, in view of the propositions of law laid down by the Hon'ble Delhi High Court in the above said case of Keith Rowe (supra), the petitioner is held entitled to compensation under the head loss of estate only in this case and not under the head loss of dependency.
In view of the considered opinion of this tribunal, the 'just' compensation to be awarded in respect of death of his deceased wife shall be as under:
i) Loss of Estate Though, according to the petitioner/PW1 her deceased wife was aged around 25 years at the time of accident, but as per her secondary school examination certificate Ex.PW1/3 filed on record by the petitioner himself, her age at the time of accident comes between 28-29 years as this document shows her date of birth to be 20.09.1978 and the accident took place on 05.07.2007.
Hence, in view of the law laid down by the Hon'ble Supreme Court in case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, which has also been upheld by the Constitutional Bench of the Hon'ble Supreme Court in the case of Pranay Sethi & Ors. (supra), the multiplier of 17 is applicable in the present case.
As stated above, earnings of the deceased as per the evidence on record were Rs.15,000/- per month at the time of accident and going by the law laid down in the above case of Keith MACP No.537/16 Page no. 22 of 27 Rowe (supra), one-fourth, i.e. 25%, of these earnings is to be considered as loss to estate of the deceased. Though in the above judgment of Keith Rowe (supra), the Hon'ble High Court has added 50% to the earnings of deceased towards future prospects, but in view of the judgment of the Constitutional Bench of the Hon'ble Supreme Court in the case Pranay Sethi & Ors. (supra), it is now settled that where the deceased was not having a government or permanent job and was less than 40 years of age, future prospects at the rate of 40% only are to be awarded.
Hence, the loss to estate of the deceased is thus computed as Rs.10,71,000/- (Rs.15,000/- X 140/100 X 1/4 X 12 X
17) and the same is awarded to the petitioner.
(ii) COMPENSATION UNDER NON-PECUNIARY HEADS In view of the law laid down by the Hon'ble Supreme Court in the above Constitution Bench judgment in the case of Pranay Sethi (Supra), the petitioner is also awarded an amount of Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses, i.e. a total amount of Rs.55,000/- under this head.
24. The petitioner is thus held entitled to the compensation as given in the following summary of computation in the prescribed format:-
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM IV-A
1. Date of accident : 05.07.2007
2. Name of the deceased : Smt. Kanwaljeet Kaur
3. Age of the deceased : 28-29 years
4. Occupation of the deceased : Merchandiser
5. Income of the deceased : Rs.15,000/-
6. Name, age and relationship of legal representative of deceased:-
Srl. No. Name Age Relation
(i) Naveen Singh 41 years Husband
Computation of Compensation
MACP No.537/16 Page no. 23 of 27
Srl. No. Heads Amount Awarded
7. Income of the deceased (A) Rs.15,000/-
8. Add-Future Prospects (B) Rs.6,000/-
9. Less-Personal expenses of the Rs.15,750/-
deceased (C)
10. Monthly loss of dependency Rs.5,250/-
[(A+B) - C = D]
11. Annual loss of dependency Rs.63,000/-
(D x 12)
12. Multiplier (E) 17
13. Total loss of dependency (D x 12 x Nil
E = F)
14. Medical Expenses (G) Nil
15. Compensation for loss of love and Nil
affection (H)
16. Compensation for loss of consortium Rs.40,000.00
(I)
17. Compensation for loss of estate Rs.10,71,000/-
(J)
18 Compensation towards funeral Rs.15,000.00
expenses (K)
19 TOTAL COMPENSATION Rs.11,26,000/-
(F + G + H + I + J+K =L)
20 RATE OF INTEREST AWARDED 9% pa from date of filing of
petition i.e. 13.08.2007
within 30 days from today
and 12% thereafter.
21 Interest amount up to the date of Rs.3,20,400.99
award (M) (In view of order dated
24.11.2017, interest w.e.f.
15.09.2009 till 24.11.2017
is being excluded)
22 Total amount including interest Rs.14,46,400.99
(L+M) being rounded off to
Rs.14,47,000/-
23 Award amount released 10% amount
24 Award amount kept in FDRs 90% amount
25 Mode of disbursement of the award Through bank
amount to claimant(s)
26 Next date for compliance of the 26.03.2019
MACP No.537/16 Page no. 24 of 27
award
ISSUE NO.3/RELIEF
25. The petitioner is thus awarded a sum of Rs.14,47,000/-
(Rupees Fourteen Lacs and Forty Seven Thousand Only) including interest till date. However, it is further directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall also be liable to be excluded from the above amount.
26. RELEASE Out of above amount of compensation, 10% amount is directed to be released to the petitioner by transferring it into his savings bank account bearing no.18152421001315 being maintained at Oriental Bank of Commerce, Surajpur District Court Compound, Greater Noida, U.P. with IFSC Code No. ORBC0101815 and remaining 90% amount is directed to be kept in 10 equal annual FDRs for a period of 1 year to 10 years in succession with cumulative interest. The amount of FDRs on maturity would also be released in his same account.
The above disbursement to the petitioner is, however, subject to addition of future interest till deposits proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any.
The bank (s) shall not permit any joint name (s) to be added in the above savings bank account or fixed deposit account of the claimant i.e. the savings bank account of the claimant shall be individual savings bank account and not a joint account (s). However, the concerned bank shall permit the claimant to withdraw money from their above savings bank account by means of a withdrawal form.
The original fixed deposits shall be retained by the UCO MACP No.537/16 Page no. 25 of 27 Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, FDR amounts, dates of maturity and maturity amounts shall be furnished by bank to the claimant.
The maturity amounts of the FDRs be credited by Electronic Clearing System (ECS) in the above mentioned savings bank account of the claimant.
No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
Petitioner has already produced before this tribunal his original passbook with requisite endorsements of the Bank Manager concerned that no cheque books or ATM cards shall be issued to him in the said account and he has also filed copies thereof on record, alongwith copies of his aadhar card and PAN card. It is directed that the concerned bank shall not issue any cheque books and/or debit cards etc. to the petitioner in future also. However, the concerned bank shall permit the claimant to withdraw money from his savings bank account by means of a withdrawal form.
27. LIABILITY Though, plea of contributory negligence on the part of driver of the above motorcycle, on which the deceased was riding on pillion, was raised by the respondent no.3, but nothing can be inferred about it from the evidence led on record and no evidence has also been led on behalf of the respondents to substantiate this claim.
Therefore, though all the respondents are held jointly and severally liable to pay the awarded amount of compensation, but since R-3/Insurance Co. has not proved any violation of the terms and conditions of insurance policy, R-3 is directed to deposit the above award amount with UCO Bank, Patiala House Court Branch MACP No.537/16 Page no. 26 of 27 by way of crossed cheque/DD in name of the petitioner within 30 days from today failing which it will be liable to pay interest at the rate of 12% per annum for the period of delay. In case even after passage of 90 days from today, R-3 fails to deposit this compensation with proportionate interest, in that event, in light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the insurance company with a cost of Rs.5,000/-.
R-3 shall inform the claimant and his counsel through registered post that the cheque of the awarded amount is being deposited so as to facilitate him to collect his cheque.
28. The copy of this award be given to the parties free of cost. Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 dated 12.12.2014.
29. Further Nazir is directed to maintain the record in Form VII as per the directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017.
30. File be consigned to Records after necessary formalities. Separate file be prepared for compliance report and be Digitally signed put up on 26.03.2019. MANOJ by MANOJ KUMAR KUMAR NAGPAL NAGPAL Date: 2018.12.22 13:03:48 +0530 Announced in the open court. (M.K.Nagpal) on 21.12.2018 PO/MACT, New Delhi MACP No.537/16 Page no. 27 of 27