Delhi District Court
Shakuntala @ Sandhya vs Rishu Gupta on 11 September, 2015
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.11/15
Date of Institution: 20.01.2015
IN THE MATTER OF:
1. Shakuntala @ Sandhya
W/o Kandhi Lal
2. Kandhi Lal
S/o Shri Rati Ram
Both residents of:
H.No.709, Friends Society
Vasundhara Sector12
Ghaziabad, U.P.
Second Address:
486, Mohammadabad
Orai, Jaloun
U.P. ...Petitioners
Versus
1. Rishu Gupta
S/o Shri Santosh Kumar Gupta
R/o H.No.RZ233, Gali No.1
Veer Nagar, Sagar Pur
Gandhi Market, Delhi 110046.
2. Asraf Ali
S/o Shri Safiullah
Suit No. 11/15 Page No. 1 of 13
Shakuntala @ Sandhya Vs. Rishu Gupta & Anr.
R/o H.No.F300, Block F
Pandav Nagar
Delhi. ...Respondents
Final Arguments heard : 21.08.2015 Award reserved for : 11.09.2015 Date of Award : 11.09.2015 ExPARTE AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 163A 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 08.03.2014 at about 1.30 p.m. the deceased Ashok along with his father was going on foot from his house to the market for purchasing Vegetables. When they reached near Mothers' Pride School, Sector12 Vasundhara, Indirapuram, a car bearing No.DL8CX3977 came and hit the deceased. As a result, the deceased died due to the injuries received in the accident. The post mortem was conducted in Safdarjung Hospital. It is submitted that the vehicle was being driven by the respondent No.1 and owned by the respondent No.2. It is stated that in respect of the accident FIR No.382/14 under sections 279/304A IPC was registered at PS Indrapuram, Ghaziabad, U.P. It is submitted that the deceased was aged about 12 years at the time of the accident and he was expected to live uptil the age of 80 years if he had not died in the accident. The deceased was a Suit No. 11/15 Page No. 2 of 13 Shakuntala @ Sandhya Vs. Rishu Gupta & Anr.
student. It is contended that the petitioners had suffered great pain, agony, mental torture and shock due to the death of the deceased. They had lost the love, affection and company of the deceased. It is averred that the loss could not be compensated in terms of money, however the petitioners were claiming compensation on account of loss of love affection and company of their son, loss of enjoyment of life, loss of future prospects, loss of future pecuniary benefits and other special and general damages as admissible under the law. It is prayed that an amount of Rs.20,00,000/ be awarded as compensation in favour of the petitioners and against the respondents.
3. The respondent No.2 was duly served. Vide order dated 17.4.2015 it was directed that the respondent No.1 be served by way of publication in "Veer Arjun". The respondent No.1 was served by way of publication in 'Veer Arjun' dated 03.05.2015 but none appeared on behalf of the respondents. The matter was listed for evidence on the question of negligence and quantum of compensation vide order dated 27.7.2015. Vide order dated 21.8.2015 the respondents were proceeded exparte.
4. On behalf of the petitioners, the petitioner No.2 Shri Kandhi Lal, appeared in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. He stated that the deceased was taken to Pushpanjali Hospital, from where he was shifted to Safdarjung Hospital where he died on 09.03.2014. He stated Suit No. 11/15 Page No. 3 of 13 Shakuntala @ Sandhya Vs. Rishu Gupta & Anr.
that the deceased Ashok left behind the petitioners No.1 and 2 i.e. his mother and his father as the only LRs. He stated that his son was having very good health at the time of the accident. Copy of voter ID card is Ex.PW1/1, copy of Aadhar Card is Ex.PW1/2 and certified copy of the criminal record is Ex.PW1/3 (colly). PE was closed on 21.8.2015.
5. I have heard the Learned Counsel for the petitioners and perused the record. The petitioner No.2 was also examined on 21.8.2015 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.
6. It is settled law that a petition under Section 163A MV Act is maintainable only in respect of victims having annual income upto Rs.40,000/ and all other claims are to be dealt with as per provisions of section 166 MV Act. However in the instant case the deceased is stated to be a young child of 12 years of age and the petitioner No.2 in his affidavit Ex.PW1/A had stated that the deceased Ashok was his son who was aged about 12 years at the time of the accident. No document has been placed on record to show the age of the deceased. In the death report the age of the deceased was stated to be 12 years and in the absence of any other document the age of the deceased would be taken as 12 years. Since the deceased was only aged 12 years the question of the deceased having any income does not arise. Since the deceased was a child of 12 years it is very difficult to ascertain his potential at Suit No. 11/15 Page No. 4 of 13 Shakuntala @ Sandhya Vs. Rishu Gupta & Anr.
that early stage. One cannot measure on golden scales the value of opportunities one would have availed and at the same time could not have availed. The subject matter has to be guided by the surrounding circumstances. In R.K. Malik and Anr. v. Kiran Pal and Ors. AIR 2009 SC 2506, the Hon'ble Supreme Court has observed as under:
"15. The real problem that arises in the cases of death of children is that they are not earning at the time of accident. In most of the cases they were still studying and not working. However, under no stretch of imagination it can be said that the parents, who are appellants herein, have not suffered any pecuniary loss. In fact, loss of dependency by its very nature is awarded for prospective or future loss. In this context Lord Atkinson aptly observed in Taff Vale Rly. Col. v. Jenkins (191113) All England Reporter 160 as follows:
"In the case of death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child's lifetime. But this will not necessarily bar the parent's claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived."
It was thus held that though the child may not be earning at the time of the accident but under no stretch of imagination it can be said that the parents have not suffered any pecuniary loss and loss of dependency by its very nature is awarded for prospective or future loss.
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7. My findings are as under:
Question of Negligence
8. It is the case of the petitioners that on 08.03.2014 at about 1.30 p.m. the deceased Ashok along with his father was going on foot from his house to the market for purchasing Vegetables. When they reached near Mothers' Pride School, Sector12 Vasundhara, Indirapuram, a car bearing No.DL8CX3977 came and hit the deceased. As a result, the deceased died due to the injuries received in the accident. The post mortem was conducted in Safdarjung Hospital. It was submitted that the vehicle was being driven by the respondent No.1 and owned by the respondent No.2. It was stated that in respect of the accident FIR No.382/14 under sections 279/304A IPC was registered at PS Indrapuram, Ghaziabad, U.P. PW1 in para 1 of his affidavit Ex.PW1/A had deposed to that effect. He stated that the deceased was taken to Pushpanjali Hospital, from where he was shifted to Safdarjung Hospital where he died on 09.03.2014.
9. The petitioners have filed certified copies of the criminal record Ex.PW1/3 (colly) comprising of copy of FIR No.382/2014 under Sections 279/304A IPC PS Indrapuram, Ghaziabad, copy of charge sheet, copy of site plan and copy of death report and copy of verification report in respect of the RC of the offending vehicle. As per the FIR No.382/2014 under Sections Suit No. 11/15 Page No. 6 of 13 Shakuntala @ Sandhya Vs. Rishu Gupta & Anr.
279/304A IPC PS Indrapuram, Ghaziabad the same was registered on the basis of the complaint of the petitioner No.2 Kandhi Lal wherein he had stated about the manner in which the accident had taken place. As per the charge sheet the respondent No.1 had been charge sheeted for the offence under Sections 279/304A IPC.
10. The respondents No.1 and 2 had not filed their written statement and were proceeded exparte. It is seen that the accident had allegedly taken place on 8.3.2014 but the FIR was got registered only on 10.3.2014. However it is pertinent that the deceased was under treatment till 9.3.2014 when he died in the night and after he expired the FIR was got lodged. The respondents No. 1 and 2 have not produced any evidence to dispute the version put forth by the petitioners or in the criminal record. The criminal record shows that the respondent No.1 has been charge sheeted for the offence under sections 279/304A IPC. This being a petition u/s. 163A MV Act no rashness/negligence is to be proved on the part of the offending vehicle and it is sufficient for grant of compensation u/s. 163A MV Act that there is an accident involving a motor vehicle and as a result of such accident death or permanent disability results to the victim. The death report shows that the deceased Ashok died on account of cardio pulmonary arrest and head injury due to RTA. In a recent judgment the Hon'ble Supreme Court in Surender Kumar Arora & Anr. v. Manoj Bisla (Dr.) & Ors. II (2012) ACC 1 (SC) has held that if the dependents proceed under Section 163A of the Act, the compensation will be awarded in Suit No. 11/15 Page No. 7 of 13 Shakuntala @ Sandhya Vs. Rishu Gupta & Anr.
terms of the Schedule without calling upon the victim or his dependents to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle. Thus no negligence is to be established by the petitioners in the present case.
11. A perusal of S.163A of the Act shows that it provides for payment of compensation for the death or injury suffered in a motor vehicle accident on a structured formula. It says that notwithstanding anything contained in the Act or in any other law for the time being in force or instrument having force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. It also provides that in any claim for compensation under this section, the claimant shall not be required to plead or establish that death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or the vehicle concerned or of any other person. It has been held in the case of Smt. Rita Devi & Ors. v. New India Assurance Co. Ltd. JT 2000 (SC) 355 that a conjoint reading of subclauses of Section 163A shows that a victim or his legal heirs are entitled to claim from the owner or insurance company a compensation for death or permanent disablement suffered due to accident arising out of the use of the motor vehicle without having to prove wrongful act or neglect or default of anyone. It Suit No. 11/15 Page No. 8 of 13 Shakuntala @ Sandhya Vs. Rishu Gupta & Anr.
was held that it was in the nature of beneficial legislation enacted with a view to confer the benefit of expeditious payment of a limited amount by way of compensation to the victims of an accident arising out of the use of a motor vehicle on the basis of no fault liability. In the matter of interpretation of a beneficial legislation, the approach of the Courts is to adopt a construction which advances the beneficient purpose underlying the enactment in preference to a construction which tends to defeat that purpose. It was held that the word 'arising out of' would imply that the accident should be connected with the use of motor vehicle but the said connection need not be direct and immediate. Thus in the instant case as well the only fact required to be established on record is that the accident had taken place due to the involvement of vehicle bearing registration No.DL8CX3977 and from the above discussion the same has been prima facie established. The offending vehicle was driven by the respondent No.1 and was owned by the respondent No.2. As such the case of the petitioners would be covered. It stands established that the deceased sustained injuries in the accident due to which he died. Accordingly this question is decided in favour of the petitioners and against the respondents.
Question of Compensation
12. Since the first question has been decided in favour of the petitioners they would be entitled to compensation. PW1 in his affidavit Ex.PW1/A had Suit No. 11/15 Page No. 9 of 13 Shakuntala @ Sandhya Vs. Rishu Gupta & Anr.
stated that at the time of the accident his son was a student. He stated that his son was having very good health at the time of the accident. He stated that they had suffered great pain, agony, mental torture and shock due to the death of their son and they had lost the love, affection and company of their son. During examination by the Tribunal, the petitioner No.2 Shri Kandhi Lal stated that he was 41 years old at present. He stated that apart from the deceased, he had three children. He stated that he was working as a labour and earning Rs.250/ to Rs.300/ per day. Though the petitioner No.2 was working but as observed above though the child may not be earning at the time of the accident but under no stretch of imagination it can be said that the parents have not suffered any pecuniary loss. Being the parents of the deceased Ashok the petitioners are entitled to compensation on account of the death of the deceased Ashok.
13. In cases under Section 163A generally the compensation is to be determined as per the Second Schedule to the Act. In Puttamma v. K.L. Narayana Reddy 2014 ACJ 526, the Hon'ble Supreme Court directed as under:
"Till such amendment is made by the Central Government in exercise of power vested under subsection (3) of section 163A of the Act, 1988 or amendment is made by Parliament, we hold and direct that the children upto the age of 5 years shall be entitled for fixed compensation of Rs.1,00,000/ (rupees one lakh) and persons more than 5 years of age shall be entitled for a fixed compensation of Rs.1,50,000/ (rupees one lakh and fifty thousand) or the amount may be determined in terms of Second Suit No. 11/15 Page No. 10 of 13 Shakuntala @ Sandhya Vs. Rishu Gupta & Anr.
Schedule whichever is higher. Such amount is to be paid if any application is filed under section 163A of the Act, 1988." In the instant case the deceased was 12 years old as borne out by the death report. As such in terms of the directions of the Hon'ble Supreme Court in Puttamma's case the petitioners would be entitled to compensation of Rs. 1,50,000/.
RELIEF
14. The petitioners are awarded a sum of Rs.1,50,000/ (Rs.One Lac fifty Thousand only) with interest at the rate of 9% per annum from the date of filing the claim petition till its realization. The petitioner No.1 Smt. Shakuntala @ Sandhya would be entitled to 80% share in the awarded amount and the petitioner No.2 Kandhi Lal would be entitled to 20% share in the awarded amount. The entire amount be released to the petitioners. The respondent No. 2 is directed to deposit the award amount directly in court by way of crossed cheques/ demand drafts within 30 days of the passing of the award failing which he shall be liable to pay interest at the rate of 12% per annum for the period of delay. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount. Suit No. 11/15 Page No. 11 of 13 Shakuntala @ Sandhya Vs. Rishu Gupta & Anr.
APPORTIONMENT OF LIABILITY
15. The respondent No.1 is the driver and the respondent No.2 is the owner of the offending vehicle. Thus the respondents No.1 and 2 are held jointly and severally liable. The respondent No.2 being the owner in respect of the offending vehicle is liable to pay the compensation on behalf of the respondent No.1. The respondent No.2 being the owner is directed to deposit the award amount in the court within 30 days of the passing of the award with interest at the rate of 9% from the date of filing of the claim petition till its realization failing which he shall be liable to pay interest at the rate of 12% per annum for the period of delay.
16. Nazir to report in case the cheques are 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 petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount. The respondent No.2 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 10.12.2015.
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An attested copy of the award be given to the parties (free of cost). File be consigned to record room.
Announced in open court
on this 11th day of September, 2015 (GEETANJLI GOEL)
PO: MACT2
New Delhi
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