Delhi District Court
Preeti Tomar W/O Late Sh. Manoj Kumar ... vs Chirag Arora S/O Sh. Ashok Arora ... on 13 January, 2017
IN THE COURT OF SURESH KUMAR GUPTA
PRESIDING OFFICER - MOTOR ACCIDENT CLAIMS
TRIBUNAL, SHAHDARA, KKD, DELHI
Unique Case ID No. 02402C0195352014
MAC Petition No. 157/14
1.Preeti Tomar W/o Late Sh. Manoj Kumar Tomar, aged 28 years
(Wife)
2.Aarav Tomar S/o Late Sh. Manoj Kumar Tomar, aged 05 years,
(Son).
3.Rajeshwari Devi W/o Sh. Chahi Ram Tomar, aged 55 years
(Mother)
4. Chahi Ram Tomar S/o Late Sh. Nathu Singh Tomar, aged 66
years, (Father)
R/o E-42, Gali no.2, Khajuri Khas Colony, Delhi 110094
(The petitioner no.2 being minor is represented through her mother
Preeti Tomar / Natural Guardian / Petitioner no.1)
........Petitioners
Versus
1. Chirag Arora S/o Sh. Ashok Arora ......(Driver & Owner)
R/o C-2/74, Ashok Vihar Phase -II,
Delhi-110052.
2. Bharti AXA General Insurance Co. Ltd.
2Nd Floor, BIG Jos Tower, A-8,
Netaji Subhash Place, Pitam Pura,
MAC No. 157/14 Page No. 1/14
New Delhi-110034
Policy No. HAX/S9651087
Valid from 31.12.2013 to 30.12.2014 ......Insurer
......Respondents
Date of institution : 07.07.2014
Date of arguments : 11.01.2017
Date of judgment : 13.01.2017
JUDGMENT
1. The petitioners have filed the petition with the averments that they are wife, child and parents of deceased Sh. Manoj Kumar Tomar.
2. The facts are like this. On 16.05.2014 at 12.20 a.m., deceased Manoj Kumar Tomar was riding his motorcycle bearing No. DL-2SE-0111 and reached near Gate No.2, GTB hospital, Delhi. One car bearing registration no. DL-9CAA-5476 being driven by respondent no.1 came from Red Light, GTB hospital side and in a high speed and in a rash and negligent manner and took a turn without any indicator and hit against motorcycle as a result he fell down and sustained injuries. He was removed to GTB Hospital and thereafter shifted to Max Hospital, Patparganj, Delhi where he has expired during the course of treatment. Postmortem on the body of deceased was conducted. FIR no. 292/2014, PS, GTB Enclave, Delhi was registered against respondent no. 1. The MAC No. 157/14 Page No. 2/14 accident has taken place due to rash and negligent driving of respondent no. 1.
3. The deceased was 33 years old at the time of accident who was working as office associate with Adecco India Pvt. Ltd. and earning Rs. 16,500/- per month. He was also running a tuition centre under the name and style Bright Vision Tuition Centre, F-2/3, Dayalpur, Delhi and earning Rs.16-18,000/- pm. The annual expenses of deceased were Rs. 3,60,000/-. The deceased has left behind the petitioners as his Lrs. They were dependent upon the deceased. The vehicle is also owned by respondent no. 1 which is duly insured with respondent no. 2 so the respondents are liable to pay the compensation.
4. The respondent no. 1 has filed written reply to the effect that he was driving his car. He has stopped his car near Gate no.2 in order to take a U turn. The deceased came on motorcycle in a high speed and in a rash and negligent manner and hit against the car who fell down and sustained injuries. He got the deceased admitted to GTB hospital. He has been falsely implicated. The allegations of the petitioners are denied. The vehicle is duly insured with insurance company.
5. The respondent no. 2 has filed the written statement to the effect that car is duly insured with the respondent. The policy is valid till 30.12.2014. The respondents is entitled for defences MAC No. 157/14 Page No. 3/14 available u/s 170 MV Act. The allegations of petitioners are denied.
6. DAR No. D-312/14 has been clubbed with this petition vide order dt. 27.08.2014.
7. From the pleading of the parties following issues are framed on 09.03.2015:-
1. Whether deceased Sh. Manoj Kumar Tomar suffered fatal injuries in the accident occurred on 15-16.05.2014 due to rash and negligent driving of vehicle no. DL- 9CAA-5476 being driven by respondent no.1? OPP
2. Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? OPP.
3. Relief.
8. Petitioners have examined three witnesses whereas respondents have not examined any witness. I have heard Ld. Counsel for the parties and perused the record. My issuewise findings are as under: -
ISSUE NO. 19. PW-1 Smt. Preeti Tomar is wife of the deceased. She has filed her affidavit Ex.PW-1/A in which she has corroborated the MAC No. 157/14 Page No. 4/14 version as set out in the beginning while briefing the facts. During cross-examination by insurance company, she stated that she has not witnessed the accident.
10. PW-2 Sh. Gagan has filed his affidavit Ex.PW2/A wherein he stated that on 16.05.2014 at 12.20 a.m., he was coming to his house from his work place and reached near Gate No.2, GTB hospital, Delhi. One car bearing reregistration no. DL-9CAA-5476 came from Red Light, GTB hospital side and in a high speed and in a rash and negligent manner and took a turn without any indicator and hit against motorcycle bearing no. DL-2SE-0111 as a result motorcyclist fell down and sustained injuries and removed to GTB Hospital. The injured was thereafter shifted to Max Hospital, Patparganj, Delhi where he has expired during the course of treatment. Postmortem on the body of deceased was conducted. FIR no. 292/2014, PS, GTB Enclave, Delhi was registered against respondent no. 1. The accident has taken place due to rash and negligent driving of respondent no. 1. Mark X is the copy of his Aadhar card. During the cross-examination by respondent no.1 the suggestion is denied that respondent no.1 has stopped his car near Gate no.2 for taking U turn or deceased was driving his motorcycle in a high speed and in a rash and negligent manner or deceased was in the drunken state or accident was not caused by respondent no.1 or he is not an eye witness or car did not hit the motorcycle. During cross-examination by respondent no.2 he stated that he was coming from East Patel Nagar to Dilshad MAC No. 157/14 Page No. 5/14 Garden. He was at distance of 20 mtrs. from the place of accident. The left portion of the car hit against the front portion of the motorcycle. The car took a turn towards gate no.2. He remained in the hospital for about 2 hours. He did not lodge report with the police. The suggestion is denied that he is not an eye witness.
11. Heard and perused the record. The evidence on the record shows that PW-1 is not an eye witness. PW-2 is allegedly an eye witness. It is clear from the reply of respondent no. 1 and detailed accident report that respondent no.1 was driving the offending vehicle at the time of accident. The factum of accident is admitted even by respondent no.1. The testimony of PW-2 shows that on 16.05.2014 at 12.20 a.m., he was coming to his house from his work place and reached near Gate No.2, GTB hospital, Delhi. One car bearing reregistration no. DL-9CAA-5476 came from Red Light, GTB hospital side and in a high speed and in a rash and negligent manner and took a turn without any indicator and hit against motorcycle bearing no. DL-2SE-0111 as a result motorcyclist fell down and sustained injuries and removed to GTB Hospital. The injured was thereafter shifted to Max Hospital, Patparganj, Delhi where he has expired during the course of treatment. The accident has taken place due to rash and negligent driving of respondent no.
1. The respondents have failed to shatter PW-2 during the course of cross examination. There is nothing on the record that he has not witnessed the accident. The respondent no.1 should have examined the investigating officer of the case in order to show that MAC No. 157/14 Page No. 6/14 PW-2 has not witnessed the accident. There is no enmity of PW-2 with the respondent no.1 so the question of false implication does not arise. FIR has been registered against the respondent no.1 who has not filed any complaint against the police in case he was not at fault. The defence of the respondent no.1 that motorcyclist hit his car does not inspire confidence.
12. The testimony of PW-2 on material points has gone unrebutted. There is nothing on the record to view his testimony with the aid of spectacles. It is clear from the testimony of PW-2 coupled with site plan that respondent no. 1 was driving the offending vehicle in a high speed and in a negligent manner and hit against motorcycle as a result deceased sustained injuries and succumbed to the injuries. The issue is decided accordingly.
ISSUE NO. 213. PW-1 Smt. Preeti Tomar has filed her affidavit Ex.PW-1/A and corroborated the version of the petition as set out in the beginning while briefing the facts. Ex.PW-1/1 is the copy of death certificate, Ex.PW1/2 is the copy of identity card of deceased issued Adecco India Pvt. Ltd, Mark PW1/3 is the copy of pay slip of deceased issued Adecco India Pvt. Ltd., Ex.PW1/4 is the copy of Bank statement of deceased, Ex.PW1/5 is the copy of LIC policies of deceased, Ex.PW1/6 is the copy of secondary school examination certificate of deceased, Ex.PW1/7 is the copy of pan card of deceased, Ex.PW1/8 is the copy of pass port of deceased, MAC No. 157/14 Page No. 7/14 Ex.PW1/9 is the copy of DL of deceased, Ex.PW1/10 is the copy of election identity card of deceased, Ex.PW1/11 is the copy of DL of Smt. Preeti, Ex.PW1/12 is the copy of fee card of Aarav Tomar, Ex.PW1/13 is the copy of birth certificate of Aarav Tomar, Ex.PW1/14 is the copy of election identity card of Smt. Rajeshwari Devi, Ex.PW1/15 is the copy of election identity card of Sh. C. R. Tomar and Ex.PW1/16 is the copy of ration card of the petitioners. During cross-examination by the respondent no. 2, she stated that deceased was elder to her by 6 years. She is not having any proof to show that her husband was imparting tuition. She does not have any details of the students to whom deceased was imparting tuitions. The deceased was not income tax assessee. The suggestion is denied that they were not financially dependent upon the deceased.
14. PW-3, Sh. Lala Ram Sharma, Sr. Executive, M/s Adecco India Pvt. Ltd. Stated that his authority letter to depose in the court is Ex.PW3/1. He has brought the wages and attendance register from January, 2014 to April 2014, Salary slips from January 2014 to April 2014, copy of appointment letter, copy of joining kit form of the deceased which are Ex.PW3/2. The deceased has joined the company on 01.12.2011 and his last drawn salary for the month of April 2015 was Rs. 16,500/- including conveyance allowance of Rs. 3100/-. During cross-examination by respondents, he stated that salary was transferred in the account of deceased.
MAC No. 157/14 Page No. 8/1415. Heard and perused the record. The testimony of PW-3 shows that deceased was working as office associate with M/s Adecco India Pvt. Ltd. and getting a salary of Rs. 16,500/- per month. This is clear from the appointment letter, extract of wage and attendance register and salary slip Ex.PW3/2. The conveyance allowance is a part of salary so it cannot be excluded from the salary. There is no proof that deceased was running a tuition centre under the name and style of Bright Vision Academy as such the testimony of PW-1 cannot be relied that deceased was also running a tuition centre. The salary of deceased is taken as income per month of the deceased. The annual income comes to Rs. 1,98,000/- (Rs. 16,500x 12). This is taken as annual income of deceased.
16. There are three dependents as father is not dependent upon deceased so 1/3th of his income is deducted towards personal and living expenses. The actual income comes to Rs. 1,32,000/- (Rs. 1,98,000/- - Rs. 66,000/-).
17. The date of birth of deceased is 11.05.1981 as recorded in testimonials Ex.PW1/6. The deceased was 33 years old at the time of accident. Keeping in view the law laid down in Sarla Verma vs DTC", 2009 ACJ 1298 the multiplier of 16 is adopted. The total compensation on account of loss of dependency comes to Rs. 21,12,000/-.(Rs. 1,32,000/- x 16).
18. The petitioners are also entitled for non-pecuniary claim. The MAC No. 157/14 Page No. 9/14 petitioner no. 1 is wife of deceased. The petitioners are entitled for loss of consortium. Consortium connotes only the husband and wife and the companionship, fellowship or togetherness of husband and wife. Reliance is placed upon "Ravinder Kaur vs Harminder Singh Chaurdhary" AIR 1984 Delhi 66. The petitioners are entitled for the loss of consortium for a sum of Rs. 1 lac. The parents have lost their son. The child has lost his father. In view of these facts, petitioners are entitled for a sum of Rs. 1,00,000/- towards loss of love and affection, Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards funeral expenses. Reliance is placed upon "Shashikala and ors. Vs Gangalakshmamma and ors. (2015) 9SCC 150.
19. The petitioners are entitled for the following compensation under the following heads : -
S. No. Name of heads Amount
1. Loss of dependency/ contribution Rs. 21,12,000/-
to the family
2. Loss of consortium Rs. 1,00,000/-
3. Loss of love and affection Rs. 1,00,000/-
4. Loss of estate Rs. 25,000/-
5. Funeral expenses Rs. 25,000/-
TOTAL Rs. 23,62,000/-
LIABILITY
MAC No. 157/14 Page No. 10/14
20. The offending vehicle is duly insured as respondent no. 2 has nowhere disputed the insurance policy of the vehicle in question. There is nothing on the record to show that there is violation of the terms and conditions of the insurance policy. There is no defence available u/s 149 (2) MV Act. The insurance company shall pay the compensation to the petitioners.
RELIEF
21. In view of my aforesaid discussion, the petition of petitioner is allowed. The respondent no. 2 i.e. Bharti AXA General Insurance Co. Ltd. is directed to pay a compensation of Rs.23,62,000/- within one month from today with interest @ 10% p.a. from the date of filing of the petition till the date of realization. (Reliance is placed on Puttama and ors. Vs K.L. Narayan Reddy and ors., 2014 ACJ 526 and C.A. No. 4814/13 titled as Nirupam Mohan Mathur vs New India Assurance Co. Ltd. decided on 01.07.2013 by Hon'ble Apex Court for the grant of interest.) The respondent no. 2 is directed to deposit the said amount including interest with Manager, UCO Bank, KKD Courts within 30 days from the date of passing of award. The insurance company is directed to give notice regarding deposit of said amount to the petitioner and his counsel.
AWARD
22. The petition of the petitioners is allowed. The respondent no.
2 i.e. Bharti AXA General Insurance Co. Ltd. is directed to pay a MAC No. 157/14 Page No. 11/14 compensation of Rs. 23,62,000/- within one month from today with interest @ 10% p.a. from the date of filing of the DAR /petition till the date of realization. The respondent no.2 is directed to deposit the said amount including interest with Manager, UCO Bank, KKD Courts within 30 days from the date of passing of award.
(a) The petitioner no. 1 will get 60% of the award amount along with corresponding interest.
(b) The petitioner no. 2 will get 20% of the award amount along with corresponding interest.
(c) The petitioner no. 3 will get 15% of the award amount along with corresponding interest.
(d) The petitioner no. 4 will get 5% of the award amount along with corresponding interest.
23. The awarded amount to each of the petitioners shall be distributed in the following manner :-
Petitioner no. 1 The Manager, UCO Bank, KKD or of any other bank shall prepare 12 fixed deposits of Rs. 1 lakh each for a period of one to twelve years and one FDR of Rs.50,000/- for a period of 6 months and the balance amount shall be released or credited to her savings bank account after opening the bank account or transfer to the her existing bank account, if any after taking relevant documents.MAC No. 157/14 Page No. 12/14
Petitioner no. 2 The Manager, UCO Bank, KKD or of any other bank shall prepare fixed deposits of entire awarded amount till the age of majority.
Petitioner no. 3 The Manager, UCO Bank, KKD or of any other bank shall prepare 3 fixed deposits of Rs. 1 lakh each for a period of 6 months, one year and two years and the balance amount shall be released or credited to her savings bank account after opening the bank account or transfer to the existing bank account, if any after taking relevant documents.
Petitioner no.4 The amount shall be released or credited to his existing saving bank account, if any after taking relevant documents.
24. The withdrawal from the aforesaid account shall be after due verification by the bank and the bank shall issue photo identity card to the petitioners to facilitate the identity.
25. The original fixed deposit receipt shall be retained by the bank during period of FDR. However, the original pass book shall be given to the petitioners along with photocopy of the FDRs.
MAC No. 157/14 Page No. 13/1426. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of the court.
27. The bank shall prepare FDR in its own name on the receipt of the award amount from the respondents till the date petitioners approach for the release of amount and thereafter amount along with interest shall be released to the petitioners as per order of the court.
28. On the request of the petitioners, the bank shall transfer the saving account to any other branch of UCO bank or any other bank according to their convenience.
29. The petitioners shall furnish all the relevant documents for opening of the saving bank account and fixed deposit account to Nodal Officer, UCO Bank, KKD, Delhi.
30. A copy of this judgment be given free of cost to the parties concerned.
31. File be consigned to record room.
Announced in open (Suresh Kumar Gupta)
court on 13.01.2017 PO-MACT/SHD/KKD
DELHI
MAC No. 157/14 Page No. 14/14