Delhi District Court
Baldev Kalra & Ors. vs . Virender Kumar & Anr. on 5 August, 2014
IN THE COURT OF SH AJAY KUMAR JAIN, PRESIDING OFFICER:
MOTOR ACCIDENT CLAIMS TRIBUNAL: SOUTH EAST
DISTRICT/SAKET COURTS/NEW DELHI
Suit No. 226/13
FIR no. 203/13
PSLajpat Nagar
Baldev Kalra & ors. Vs. Virender Kumar & anr.
FATAL CASE
1. Sh. Baldev Kalra S/o Ram Saran Kalra
2. Pankaj S/o Baldev Kalra
3. Chetna D/o Baldev Kalra
4. Bharat S/o Baldev Kalra
5. Shalu D/o Baldev Kalara
All R/o H.NO. 252, Sector 3, Ballabhgarh, Faridabad, Haryana
.............Petitioner/claimant
VERSUS
1. Sh. Virender kumar S/o Sh. Jaikishan (driver cum owner)
R/o H.No. E1, Main Road, Dayalpur, New Delhi94
2. National Insurance Company Limited
through its Manager,
Having office at: 124, Connaught Circus, level IV,
Tower II, Jeevan Bharti, New Delhi
......................Respondents
Date of Institution : 19.08.2013
Date of reserving judgment/order : 05.08.2014
Date of Pronouncement : 05.08.2014
JUDGMENT:
1. Present claim proceedings initiated on the basis of Detailed accident report Suit No. 226/13, Baldev Kalra & ors. Vs. Virender Kumar & anr., page1/12 (DAR) filed by the police on 19.08.2013. Subsequently, a claim petition u/s 166/140 MV Act was also filed by the petitioners.
2. The claimants/petitioners are Sh. Baldev Kalra husband of the deceased Usha Kalra, Pankaj, Chetana, Bharat, Shalu married son & daughters of the deceased Usha Kalra.
3. Brief facts of the case are that on 07.07.2013 at around 09.00am, when deceased was standing near the footpath metro hospital Lajpat Nagar, offending motorcycle bearing no. DL13 SG 1569 driven by R1 in rash and negligence manner hit the deceased due to which she sustained grievous injuries, thereafter she was immediately removed to AIIMS Trauma Centre, where died during treatment on 09.07.2013 due to the injuries suffered in the accident.
4. An FIR no. 203/2013 u/s 279/337 IPC PS Lajpat Nagar was registered. Police during investigation recorded the statement of witnesses, prepared the site plan plan of the place of occurrence, seized the offending motorcycle, conducted its mechanical inspection, collected the MLC/postmortem report of the deceased, arrested respondent no. 1 (driver). On completion of investigation, police found respondent no.1 accused of rash and negligent driving, hence chargesheeted him for commission of offence u/s 279/304 A IPC.
5. Insurance company in its WS admitted that offending motorcycle was duly insured with the insurance company, however reserves its right to raise statutory defence later on. Though the opportunity to file reply on behalf of Suit No. 226/13, Baldev Kalra & ors. Vs. Virender Kumar & anr., page2/12 driver cum owner was closed vide order dated 04.03.2014 but on request of driver cum owner the written statement was taken on record vide order dated 17.04.2014. Main plea of R1 in WS is that accident did not cause due to rash and negligent driving of R1 but due to the negligent crossing of road by the deceased.
6. During inquiry following issues were framed:
(1) Whether the petitioner suffered injuries in the accident which took place on 07.07.2013 at about 09.00am involving vehicle motorcycle bearing No. DL13 SG 1569 due to rash and negligent driving of R1, owned by R1 and insured with R2? (OPP) (2) Whether the petitioners are liable for compensation. If so, to what amount and against which of the respondents?
(3) Relief.
7. During evidence petitioner Baldev Kalra examined himself as PW1, PW2 Niranjan Singh, UDC Govt. Girls Senior Secondary School no.2 Railway Colony T.K.D New Delhi. No evidence is led by any other respondents.
8. After hearing the arguments and considering the material on record, my issue wise finding is as under:
9. Issue no.1 (Negligence): PW1 Baldev Kalra in his affidavit of evidence stated that deceased Usha Kalra suffered fatal injuries due to rash and negligent Suit No. 226/13, Baldev Kalra & ors. Vs. Virender Kumar & anr., page3/12 driving of R1, though he is not the eye witness, his version is duly corroborated by police investigation. Police during investigation also found respondent no. 1 accused of rash and negligent driving, hence chargesheeted for commission of offence u/s 279/304A IPC . No evidence to the contrary led by R1(driver cum owner).
10. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court in case titled "Basant Kaur & Ors Vs. Chattar Pal Singh and Ors" [2003 ACJ 369 MP (DB)], wherein it has been held that registration of a criminal case against the driver of the offending vehicle is enough to record the finding that the driver of offending vehicle is responsible for causing the accident. Further it has been held in catena of cases that the proceedings under the Motor Vehicles Act are not akin to the proceedings as in civil suit and hence strict rules of evidence are not required to be followed in this regard. I am also being guided by the judgment of Hon'ble High Court of Delhi in "National Insurance Company Limited Vs. Pushpa Rana" (2009 ACJ 287), wherein it was held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under Section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo or the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It is also settled law that the term rashness and negligence has to be constructed lightly while making a decision on a petition for claim for Suit No. 226/13, Baldev Kalra & ors. Vs. Virender Kumar & anr., page4/12 the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
11. In view of the above discussion, further as no contrary evidence came against the petitioners, it stands proved that the deceased had suffered fatal injuries due to rash and negligent driving of the R1. Accordingly the issue no. 1 is decided in favour of the petitioner and against the respondent. Issue no.2 (compensation):
12. Apex Court in Sarla Verma Vs. DTC (AIR 2009 SC 3104) comprehensively dealt with the relevant principals relating to the assessment of compensation in death cases. Apex Court in this case observed that in fatal accident, the measure of damage is pecuniary loss suffered or is likely to be suffered by each dependent as a result of death, and basically only three facts need to be established by the claimants for assessing compensation in case of death : (a) age of the deceased or claimant whichever is higher, (b) income of the deceased and (c) number of dependents.
13. Age of deceased: As per income tax record deceased was found to be born on 30.07.1952, therefore she is found to be around 61 years of age on the date of accident i.e 07.07.2013. thus the applicable multiplier according to Sarla Verma case is 07.
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14. Income of the deceased: PW1 Baldev Kalra in his affidavit of evidence stated at the time of accident deceased was working as trained graduate teacher with Govt. Girls Senior Secondary School, Railway Colony T.K.B, New Delhi. PW2 Niranjan Singh, UDC of Govt. Girls Senior Secondary School no.2 , Railway Colony T.K.B, New Delhi deposed that deceased was working as T.G.T English, and in the month of June drawing salary of Rs. 41,248/, in this regard relied upon certificate issued by DDO of the said school(Ex. PW2/4). Therefore deceased is found to be earning Rs. 41,248/ on the date of accident. hence her annual is found to be Rs. 4,94,976/.
15. Net Annual Income: Gross annual income - Income tax [4,94,976 (4,94,9762,50,000) 10%] = 4,70,478.40/ (round off 4,70,479/)
16. Dependents:PW1 Baldev Kalra in his cross examination stated that he was doing a private job as type instructor at Ballabhgarh, and retired from Aggrawal College getting pension around 18,000/ per month. He further stated that his both sons and both daughters are married. Petitioner no.4 is studying in M.S after doing B. Tech and petitioner no.2 presently residing in USA supporting the entire family. From the testimony of this witness it can be inferred that none of the petitioners are dependent upon the deceased. Hence, petitioners are not entitled for loss of dependency but only for loss of estate. Loss of estate is to be computated on the basis of savings of the deceased. In view of judgment of Delhi High Court in Keith Rowe Vs Prashant Sagar II (2010) ACC 64, quantum of saving to be be taken as 1/3rd of the income of the deceased.
17. Loss of Estate: Suit No. 226/13, Baldev Kalra & ors. Vs. Virender Kumar & anr., page6/12 Rs. 4,70,497X1/3X05= 7,84,131.67 (round off 7,84,132/)
18. Hon'ble apex court in case titled 'Rajesh & Ors. Vs. Rajbir Singh & ors. 2013(6) SCALE 563", directed Tribunals that irrespective of the claims made in the application, the Tribunals are required to award compensation which should be just equitable and reasonable. In this regard, the Hon'ble apex court revisited the amount of compensation under conventional heads of loss of consortium , loss of love and affection and funeral expenses. Apex court in para no. 20 & 21 held as under:
1. "The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socioeconomic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi (Supra). We may, therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love , care and guidance to children and funeral expense. It may be noted that the sum of Rs. 2,500/ to Rs. 10,000/ in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case (Supra), it was held that compensation for loss of consortium should be in the range of Rs. 5000/ to Rs. 10,000/. In Legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That nonpecuniary head of damage has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated Suit No. 226/13, Baldev Kalra & ors. Vs. Virender Kumar & anr., page7/12 appropriately. The concept of nonpecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.
2. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head of 'funeral Expenses'. The 'Price Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least Suit No. 226/13, Baldev Kalra & ors. Vs. Virender Kumar & anr., page8/12 an amount of Rs. 25,000/.
19. Funeral Expenses: Keeping in view the present day expenses and mandate of the above judgment, a sum of Rs. 25000/ is granted towards funeral expenses.
20. Loss of love and affection: In present case , deceased was survived with husband and four children. Hence, total sum of Rs. 1,00,000/ is granted to petitioners towards love and affection.
21. Loss of Consortium: Considering the facts and circumstances of the present case and the mandate of the above judgment, a sum of Rs. 1,00,000/ is granted to wife towards loss of consortium.
22. The total compensation is assessed as under : Sl. No Description Amount 1 Loss of Estate Rs.7,84,132/ 2 Funeral Expenses Rs.25,000/ 3 Love & Affection Rs. 1,00,000/ 4 Loss of consortium Rs. 1,00,000/ Total Rs. 10,09,132/ Suit No. 226/13, Baldev Kalra & ors. Vs. Virender Kumar & anr., page9/12 Relief
23. I hereby award an amount of Rs10,09,132/(Rupees ten Lac nine thousand one hundred and thirty two only), as compensation with interest @ 9% per annum, from the date of filing the present petition, i.e., till the date of realization of the amount, in favour of the petitioners and respondents on account of their liability being joint and several.
24. The driver R1 is the principal tort feasor whereas R2 being the owner vicariously liable for the acts of R1. R3 insurance company liable to indemnify R2.
Release of awarded amount:
25. Share of petitioner no.1 (Sh. Baldev Kalra, husband of deceased): A sum of Rs 3,09,132/ alongwith proportionate interest thereon, is awarded to the petitioner no.1 being wife of the deceased. Out of this amount, Rs 1,09,132/ alongwith proportionate interest be immediately released to the petitioner no.1 on realization. And for balance amount of Rs. 2 lacs alongwith proportionate interest thereon be kept in form of FDR in the following phased manner :
1.Rs. 1 lac for a period of one year
2. Rs. 1 lacs for a period of two years
26. Share of petitioner no.2 (Pankaj, son of deceased): A sum of Rs 2 lacs alongwith proportionate interest thereon, is awarded to the petitioner no.2 being son of the deceased to be kept in form of FDR in the following phased manner :
Suit No. 226/13, Baldev Kalra & ors. Vs. Virender Kumar & anr., page10/12
1.Rs. 1 lac for a period of one year
2.Rs. 1 lac for a period of two years
27. Share of petitioner no.3 (Chetna, daughter of deceased): A sum of Rs. 1.5 lac alongwith proportionate interest thereon, is awarded to the petitioner no.3 being daughter of deceased to be kept in form of FDR in the following phased manner :
1. Rs. 1.5 lac for a period of 1 year
28. Share of petitioner no.4 (Bharat, son of deceased): A sum of Rs. 2 lacs alongwith proportionate interest thereon, is awarded to the petitioner no.4 being son of deceased to be kept in form of FDR in the following phased manner :
1. Rs. 1 lac for a period of one year
2. Rs. 1 lac for a period of two years
29. Share of petitioner no.5 (Shalu, daughter of deceased): A sum of Rs. 1.5 lac alongwith proportionate interest thereon, is awarded to the petitioner no.5 being daughter of deceased to be kept in form of FDR in the following phased manner :
1. Rs. 1.5 lac for a period of 1 year
30. In view of the above discussion, insurance company is directed to deposit the award amount in the court within a period of 30 days from today alongwith the interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay.
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31. The award amount shall be deposited in the account of petitioners with the State Bank of India and shall be released where after to the petitioners.
32. Petitioners are directed to get their account opened at State Bank of India, Saket Branch, after receiving the copy of the award. The copy of the award shall be given to the parties. It is directed that the respondent insurance company will make an endorsement of the title of the case, suit number, name of the parties and other relevant details while depositing the cheque in the bank. The compliance be made by all concerned.
33. Copy of this order be given dasti to the parties.
34. Put up for receiving the compliance on 08.09.2014.
Announced in open Court ( AJAY KUMAR JAIN)
Dated : 05.08.2014 PO : MACT02, (SOUTH EAST DISTRICT)
SAKET COURTS/NEW DELHI/05.08.2014
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