Delhi District Court
Sh. Sant Baksh S/O Sh. Raja Ram Singh vs ) Sh. Raghubir Singh S/O Sh. Jugti Ram on 31 May, 2012
1
IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT & SESSIONS
JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
ROHINI COURTS, DELHI
(MACT No.713/09/10)
Sh. Sant Baksh S/o Sh. Raja Ram Singh
R/o H. No.24B, Poore Khuraee A, Village-Sitkaha
Distt. Partapgarh, UP. --------------Petitioners
Versus
1) Sh. Raghubir Singh S/o Sh. Jugti Ram,
Shop no.5, Block B-2 Market, Sultanpuri,
New Delhi.
2) National Insurance Co. Ltd.
Office at: Jeevan Bharti Building, 124 Connought Circus,
New Delhi. -----------Respondents
Date of institution------12.01.2009
Date of decision---------31.05.2012
(APPLICATION U/S 166 AND 140 OF MOTOR VEHICLES ACT
FOR GRANT OF COMPENSATION)
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JUDGMENT:-
As per averments made in the petition, on 03.12.2008 at about 6.15pm, Smt. Gyana Devi (hereinafter referred to as deceased) aged about 20 years was going on foot and when she reached in front of Sirki Market, main Sultanpuri Road, Delhi, then she was hitted by RTV Bus No.DL-1VA-1043 being driven by respondent no.1 in rash and negligent manner, due to deceased received fatal injuries and died before reaching the hospital. The accident had occurred solely due to rash and negligence driving of offending vehicle by respondent no.1. Thereafter, a criminal case was registered against respondent no.1 vide FIR No.705/2008 u/s 279/304A IPC in police station Sultanpuri, Delhi.
2Petitioner no.1 being husband of the deceased alleged that the deceased was aged about 20 years and was enjoying excellent health. It is further averred that deceased was a housewife and not employed anywhere. He claimed sum of Rs.10lakhs as compensation from respondents being driver, owner and insurance company of the offending vehicle.
Respondents no. 2 has filed written statement denying the averments averred in the plaint and admitting that the offending vehicle was insured with it but tried to avoid its liability on various technical grounds stating the offending vehicle was being driven by its driver without holding any valid driving licence and other relevant documents.
During pendency of the case petitioner received interim compensation of Rs.50,000/- alongwith interest @ 7.5% from the date of institution under section 140 of Motor Vehicles Act on account of no fault liability vide order dated 23.02.2010. On the basis of pleadings of the parties, following issues were framed on 23.02.2010 by my ld. Predecessor:
1). Whether the deceased Smt. Gyana Devi W/o Sh. Sant Baksh expired due to the fatal injuries received in the roadside accident occurred on 03.12.2008 at 6.15pm in front of Sirki Market, Sultanpuri Road, Sultanpuri, Delhi, due to rash and negligent driving of R-1 / driver of offending vehicle no.
DL-1VA-1043 (RTV) ? OPP
2). Whether the petitioners are entitled to compensation as prayed for, if so, to what extent and from which of the respondents?
OPP
3). Relief.
In order to prove his case, petitioner i.e. legal heir of the deceased has examined himself as PW1 and SI Prem Singh as PW2.
3PW1/Petitioner, husband of the deceased has reiterated the facts as averred in his petition and proved on record various relevant documents i. e. certificate of Panchayat as Ex.PW1/2 and criminal case record as Ex.PW1/3. PW2 deposed being police official who received the DD entry regarding the alleged accident. He also visited the spot and found that offending RTV was lying overturned at the spot and deceased was shifted to hospital. He also prepared the site plan. He further stated as per his investigation the alleged accident had took place due to rash negligence driving of offending RTV by its driver / respondent no.1.
Despite opportunities given, respondents have not lead any evidence, therefore, the evidence on behalf of the respondents is treated as closed and the matter was fixed for final arguments. I have heard counsel for the parties and gone through the record of the case. My decision on the above mentioned issue is as under;
ISSUE NO. 1:-
The principles to be followed in the case of motor accident claim have been laid down by the Hon'ble High Court of Guwahati in case cited as Renu Bala Paul and Ors. vs. Bani Chakraborty and Ors. 1999 ACJ 634 by Hon'ble Guahati High Court that:
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is 4 a summary inquiry and this is a legislation for the welfare of the society.
N.K.V. Bros (P) Ltd. vs. M.Karumai Ammal & Ors. (1980) 3 SCC 475, Hon'ble Supreme Court has observed as under:-
"In Road accidents are one of the top killers in our country, especially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
Hence, the standard of proof though lesser than civil and criminal case, but some evidence is required to brought on record to show that the accident was caused due to rash and negligent driving of offending vehicle. The police official, who conducted the proceedings after accident, has been examined by petitioners as PW-2. He has recorded the statement of eye witnesses present at the spot and entirely blamed driver of offending RTV in causing the accident. Nothing adverse could come in the cross-examination of the witness to discard his version.
Further, It is not the case of the respondent no.1 that he knew either the deceased or the eye witness before hand or that IO has any grudge against him, though he is facing prosecution. There is nothing on record to show that respondent no.1 had lodged any complaint to any higher authority regarding alleged false implication in criminal case. There is also no evidence on record to point out that respondent no.1 had any enmity with deceased or his family members or eye 5 witnesses or investigation officer to create possibility of false implication of respondent no.1 in criminal case. Respondent no.1 has not came forward to effectively cross-examine the police official PW2 nor led their own evidence and had chosen to remain out of the court from which it can be presumed that they had no defence and are indirectly admitting all the allegations. Version of witnesses and the criminal case record have corroborated the story of the accident having being caused by the driver of the offending vehicle by driving the vehicle in a rash and negligent manner. In view of the above discussions it is crystal clear that accident took place due to the sole negligence on the part of driver by driving the offending vehicle in a rash and negligent manner and there was no negligence on the part of the deceased. In view of the above discussions, these issues are decided in favour of petitioners and against the respondents.
ISSUE NO. 2:-
In view of the findings on above issues petitioners are entitled to both pecuniary and non pecuniary damages. As per petition deceased was a housewife and not employed anywhere at the time of accident.
Counsel for the petitioner placed reliance upon the judgment of Hon'ble Delhi High Court decided by Hon'ble Mr. Justice G.P. Mittal in Royal Sundaram Alliance Insurance Co. Ltd. vs. Master Manmeet Singh & Ors., MAC APP. No. 590/2011 wherein it is held that:
"The value of services rendered by a home maker should be taken as the minimum salary of a non-matriculate, matriculate or a Graduate, (in the absence of any evidence to the contrary). In case of a young mother and a wife there should be an addition of 25% of the minimum salary/wages as per the educational qualification i.e. Graduate, matriculate or non-matriculate.6
The next question that falls for consideration is whether there should be any deduction towards the personal living expenses of the deceased (Home maker)".
It is further held that:
"If a deceased housewife who lost her life in a motor accident would have died a natural death, the pecuniary advantage on account of savings made of the expenditure required for her maintenance would have otherwise also accrued to the benefit of the Claimants. Since the pecuniary advantage does not become receivable only on account of accidental death, in my view, the portion of the husband's income (spent on the deceased's maintenance) cannot be deducted.
To sum up, the loss of dependency on account of gratuitous services rendered by a housewife shall be:
Minimum salary of a Graduate where she is Graduate. Minimum salary of a Matriculate where she is a Matriculate. Minimum salary of a non- Matriculate in other cases.
There will be an addition of 25% in the assumed income in (i), (ii) and
(iii) where the age of the homemaker is upto 40 years;
Thus as per this judgment, it can be held that deceased atleast was earning sum of Rs.3876/- per month under the non-matriculate category of schedule of Minimum Wages Act and I treat the monthly income of deceased at Rs.4845 paisa (Rs. 3876 + 25%).
As already discussed above, as per postmortem report the age of the deceased was approximately 20 years at the time of her death. Hence, in view of the judgment of Hon'ble Supreme Court given in Pushpa & Others Vs National Insurance Co. Ltd. & Another reported in 2011 ACJ 2140, multiplier of 18 has to 7 be applied upon the income of the deceased. Accordingly, in this case, loss of dependency is assessed at Rs.10,46,520/- (4845/- x 12 x 18). Hence, the petitioners are only entitled to Rs.10,46,520/- on account of loss of dependency. It is pertinent to mention here that since deceased had died issueless, hence I am of the view that 50% deduction on account of personal expenses be made from the total amount of loss of dependency, which comes to Rs.5,23,260/- (Rs.10,46,520/- less 50%).
Petitioners have averred that they have spent over the last rites and rituals of the accused but not brought on record any document regarding the same. It is a judicial noticeable fact that normally some expenses are incurred upon cremation, Chotha or Theharvin ceremonies etc. Hence, I deem it proper to grant lump sum amount of Rs.10,000/- as funeral charges.
Petitioners are in my view also required to be awarded sum of Rs. 1,00,000/- towards loss of estate. Petitioner is also entitled to sum of Rs. 10,000/- towards loss of consortium in view of the decision of Supreme Court given in Sarla Verma's case. I also award a sum of Rs.25,000/- towards Loss of love and affection, loss of company and support, trauma and loss of other discomfort after relying upon the judgment of Delhi High Court in case Sajha vs. National Insurance Co. Ltd. 2010 ACJ 627.
Respondent no.2 Insurance Company has not brought on record any evidence to point out that respondent no.1 was not having any valid driving license or permit and fitness of the offending RTV bus was improper as well as failed to bring on record any evidence to point out that it is not liable to pay compensation amount as assessed by the court or any term or condition of the insurance policy was breached by the insured or it has any limited liability. This fact also shows that respondent no.2 Insurance Company has no defence, accordingly in such circumstances and keeping in view the existence of valid insurance policy, respondent no. 2 alone becomes entitled to pay entire compensation amount.
8After considering the merits of the case, petitioners are entitled to get the following total compensation from the respondent no.2 insurance company :
Pecuniary Damages
a) Funeral charges ======================Rs. 10,000/-
b) Loss of dependency=================== Rs. 5,32,260/-
c) Loss of Consortium ====================Rs. 10,000/- Non Pecuniary Damages
a) Loss of love and affection etc.============Rs. 25,000/-
b) Loss of Estate ======================= Rs. 1,00,000/-
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Total Rs. 6,77,260/-
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Since petitioners have already received interim compensation of Rs.50,000/-, so the balance amount left payable is Rs. 6,27,260/-. Petitioners shall be entitled to interest at the rate of 9% p.a as per the judgment in case New India Assurance Co. Ltd Vs Bhudhia Devi and others reported in 2010 ACJ 2045 on this amount from 12.01.2009 till realization. This issue is decided accordingly in favour of petitioners and against the respondents.
ISSUE NO. 3 (Relief):-
On the basis of findings given above, present petition is disposed off and an award is passed. Respondent no. 2 insurance company is directed to pay within 30 days a sum of Rs.6,27,260/- to the petitioners along with interest at the rate of 9% p.a. From 12.01.2009 till this amount is fully paid.9
It is ordered that entire amount of the compensation amount be deposited in the name of petitioner in the form of FDR with State Bank of India, Rohini District Courts, Delhi, with a liberty to withdraw monthly interest through savings bank account. It is made clear that FDR shall not be encashed without permission of the court. No loan or advance shall be given on the FDR except with prior permission of court. Respondent no.2 insurance company is directed to prepare the separate cheques of the compensation amount as per above order. Insurance company is directed to make a payment of Rs.50,000/- + Rs.5,000/- out of pocket expenses by way of cheque in favour of counsel for the petitioner Sh. Mohinder Malhotra, Adv., as per judgment of Hon'ble High Court in case titled Sat Prakash Vs Jagdish reported in II (2010) ACC 194 passed by justice J.R. Midha.
Respondent no.2 insurance company is directed to prepare the separate cheques of the compensation amount as per above order. Copy of this judgment be given to petitioners and counsel for respondent no.2insurance company for compliance. File be consigned to record room.
Announced in the open (D.K. MALHOTRA)
Court on 31.05.2012 JUDGE, MACT (OUTER-II)
DELHI