Delhi District Court
Smt. Kamli @ Kamla Devi vs Mact No. 196/12 Smt. Kamli @ Kamla Devi & ... on 6 March, 2014
IN THE COURT OF SHRI ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS: NEW DELHI
MACT No. 196/12 and 247/12
IN THE MATTER OF :
(1) MACT No. 196/12
1. Smt. Kamli @ Kamla Devi, (Wife: Aged 42 years)
W/o Late Shri Prahlad,
2. Shri Ashok Kumar, (Son : Aged 23 years)
S/o Late Shri Prahlad
3. Shri Kalu Ram, (Son : Aged 20 years)
S/o Late Shri Prahlad
4. Ms. Kiran Kumari, (Daughter: Aged 18 years)
D/o Late Shri Prahlad
5. Smt. Panchi Devi, (Mother : Aged 71 years)
W/o Shri Mahadev Singh
6. Shri Mahadev Singh, (Father: Aged 72 years)
S/o Late Shri Shusha Ram
R/o H. No. 146, Gali No. 1, 25,
Opp. Police Station,
Kapashera, New Delhi - 110 037.
Also at: H. No. 167, Raigaron Balaiyon Ka Mohalla,
Tevadi, Tehsil - Virat Nagar,
Distt. Jaipur, Rajasthan.
... Claimants
Versus
MACT No. 196/12 Smt. Kamli @ Kamla Devi & Ors. Vs. Shri Praveen Kataria & Ors. Page 1 of 16
MACT No. 247/12 Shri Pawan Vs. Shri Praveen Kataria & Ors.
1. Shri Praveen Kataria, (Driver)
S/o Shri Rati Ram Kataria,
R/o Plot No. 14, Building No. 101,
East Silver Oak Apartment,
DLF PhaseI, Gurgaon.
C/o: SDM Mahendergarh,
Haryana - 123 029.
2. Shri Kamalbir, (Owner)
S/o Shri Lakhmi Chand,
R/o H. No. 406, Jan Pratinidhi Apartments,
Sector - 28, Gurgaon, Haryana.
C/o: SDM Mahendergarh,
Haryana - 123 029.
3. Bharti AXA General Insurance Company Ltd., (Insurer)
2 Floor BIG JOS Tower A8,
nd
Netaji Subhash Place,
New Delhi - 110 034.
Policy Cover Note: 30640331
Valid from 28.02.2011 to 27.02.2012
... Respondents
Filed on : 07.02.2012
Reserved on : 04.03.2014
Decided on : 06.03.2014
AND
(2) MACT No. 247/12
Shri Pawan, (Aged : 25 years)
S/o Shri Gulab Singh,
R/o H. No. 25, Opposite Police Station,
Kapashera Village,
New Delhi - 110 037.
... Claimant
Versus
MACT No. 196/12 Smt. Kamli @ Kamla Devi & Ors. Vs. Shri Praveen Kataria & Ors. Page 2 of 16
MACT No. 247/12 Shri Pawan Vs. Shri Praveen Kataria & Ors.
1. Shri Praveen Kataria, (Driver)
S/o Shri Rati Ram Kataria,
R/o Plot No. 14, Building No. 101,
East Silver Oak Apartment,
DLF PhaseI, Gurgaon.
C/o: SDM Mahendergarh,
Haryana - 123 029.
2. Shri Kamalbir, (Owner)
S/o Shri Lakhmi Chand,
R/o H. No. 406, Jan Pratinidhi Apartments,
Sector - 28, Gurgaon, Haryana.
C/o: SDM Mahendergarh,
Haryana - 123 029.
3. Bharti AXA General Insurance Company Ltd., (Insurer)
2 Floor BIG JOS Tower A8,
nd
Netaji Subhash Place,
New Delhi - 110 034.
Policy Cover Note: 30640331
Valid from 28.02.2011 to 27.02.2012
... Respondents
Filed on : 04.02.2014
Reserved on : 04.03.2014
Decided on : 06.03.2014
J U D G M E N T:
1. These are two claim petitions which are filed under Section 166 and 140 of the Motor Vehicles Act, 1988 for grant of compensation.
2. Claim Petition No. 196/12 titled as Smt. Kamli @ Kamla Devi & Ors. Vs. Shri Praveen Kataria & Ors. is filed by legal heirs of one Shri Prahlad who had suffered fatal injuries in a road MACT No. 196/12 Smt. Kamli @ Kamla Devi & Ors. Vs. Shri Praveen Kataria & Ors. Page 3 of 16 MACT No. 247/12 Shri Pawan Vs. Shri Praveen Kataria & Ors. traffic accident and Claim Petition No. 247/12 titled as Shri Pawan Vs. Shri Praveen Kataria & Ors. is filed by Shri Pawan who was also injured in that very accident.
3. Respondent No. 1 the driver, Respondent No. 2 the owner and Respondent No. 3 the insurer of the offending vehicle in both these claim petitions are same.
4. On 11.04.2013, an order was passed in the claim petition of Smt. Kamli @ Kamla Devi & Ors. that evidence of eye witness Shri Pawan shall also be read as evidence in their claim petition i.e. in Claim Petition No. 196/12 titled as Smt. Kamli @ Kamla Devi & Ors. Vs. Shri Praveen Kataria & Ors. and both the claim petitions shall be disposed of vide a common award.
5. Therefore, both the claim petitions are being disposed of vide this common award.
6. First, facts as are stated in the case of Smt. Kamli @ Kamla Devi & Ors. Vs. Shri Praveen Kataria & Ors. are taken up for consideration.
7. It is stated in this claim petition that on 18.11.2011, at about 8:00 p.m., Shri Prahlad (since deceased) along with his friend Shri Pawan Kumar was going to his Shop i.e. Jai Matadi Plywood, Sikandar Pur after attending a marriage party from Village Chakra Pur by Motorcycle bearing No. HR26BB6526(Bajaj Discover). The motorcycle was being driven by Shri Pawan Kumar at a normal speed and on the correct side of the road.
8. It is further stated that at about 8:10 p.m., when they reached at Galleria Market, Red Light, P.S. DLF Sector29, Gurgaon, in the meanwhile, a Toyota Car bearing No. HR34D3434 driven by MACT No. 196/12 Smt. Kamli @ Kamla Devi & Ors. Vs. Shri Praveen Kataria & Ors. Page 4 of 16 MACT No. 247/12 Shri Pawan Vs. Shri Praveen Kataria & Ors. Respondent No. 1 at a very high speed, rashly and negligently came from wrong side / opposite side and hit the motorcycle with a great force. As a result of this, motorcycle fell down on the road and both the riders suffered grievous injuries. Accident victims were removed to Paras Hospital by public persons where Shri Prahlad succumbed to injuries on 19.11.2011, at about 12:55 a.m. Postmortem was conducted on his body at General Mortuary, Gurgaon vide PMR No. DM/909/11.
9. It is further stated by the claimants that FIR No. 345/11 was registered by the police at P.S. DLF Qutab Enclave, Gurgaon under Section 279/337/304 of IPC against Respondent No. 1.
10. Claimants have also stated that they have spent Rs. 50,0000/ on transportation and last rites of the deceased.
11. Claimants have stated that the deceased was 45 years old. He was a labourer and was earning Rs. 10,000/ per month.
12. In these circumstances, claimants have claimed a compensation of Rs. 20,00,000/ along with interest @ 12% per annum from the date of filing of this claim petition till its realization.
13. Respondent No. 1 and 2 were proceeded ex parte and only Respondent No. 3, the insurer of the offending vehicle filed its reply. Insurance of the vehicle on the date of accident was admitted. However, in the absence of any verification, it was stated that the alleged offending vehicle was being driven by its driver who was not holding a valid and effective driving license to drive the said vehicle at the time of accident.
14. It was also stated that the accident was due to negligence of the deceased himself.
15. Rest of the contents of claim petition were also MACT No. 196/12 Smt. Kamli @ Kamla Devi & Ors. Vs. Shri Praveen Kataria & Ors. Page 5 of 16 MACT No. 247/12 Shri Pawan Vs. Shri Praveen Kataria & Ors. denied.
16. To decide the compensation payable to the claimants, following issues were framed:
1. Whether Sh. Prahlad (deceased) had sustained fatal injuries on his person in an accident which took place on 18.11.2011 due to negligent driving of vehicle bearing No. HR34D3434 being driven in a negligent manner by Respondent No. 1 and owned by Respondent No. 2 and insured with Respondent No. 3? OPP
2. In case, Issue No. 1 is decided in favour of the petitioners, to what amount of compensation, they are entitled to and from whom? OPP
3. Relief.
17. Widow of the deceased had entered in the witness box as PW1 and had stated similar facts in her evidence by way of affidavit as were already stated by her in her claim petition. She proved Death Certificate of the deceased as Ex. PW1/1, School Leaving Certificate of the deceased as Ex. PW1/2, Voter Card of the deceased as Ex. PW1/3, Voter Card of Claimant No. 1 as Ex. PW1/4, Voter Card of Claimant No. 2 as Ex. PW1/5, Voter Card of Claimant No. 3 as Ex. PW1/6, Certificate from the School where Claimant No. 4 is a Student as Ex. PW1/7, Voter Cards of Claimant No. 5 and 6 as Ex. PW1/89 respectively and her Ration Card as Ex. PW1/10.
18. In crossexamination, she admitted that she is not an eye witness to the accident. She admitted that she has no document to show that the deceased was employed with M/s. Jai Matadi Plywood or that salary the salary of the deceased was Rs.
MACT No. 196/12 Smt. Kamli @ Kamla Devi & Ors. Vs. Shri Praveen Kataria & Ors. Page 6 of 16MACT No. 247/12 Shri Pawan Vs. Shri Praveen Kataria & Ors. 10,000/ per month. She admitted that as per Voter Card, age of the deceased would be 47 years on the date of accident.
19. Other suggestions contrary to her case were denied by her.
20. For the purposes of proving negligence of Respondent No. 1, reliance is placed by the claimants on the evidence of Shri Pawan Kumar who is claimant in Claim Petition No. 247/12. This witness has stated in his evidence by way of affidavit similar facts visavis the accident as were already stated by the claimants in their claim petition.
21. In crossexamination, he deposed that the motorcycle was driven by him at the time of accident belonged to his employer; he had a driving license at the time of accident; he and the deceased both were wearing helmets at the time of accident; the accident was not due to his own negligence; initially the offending vehicle had stopped for a while and he had noted its number but when the driver realized that the pillion rider had suffered serious injuries, he ran away from the place of accident.
22. Additionally, claimants have also filed certified copies of documents from the Court trying criminal case registered against Respondent No. 1 where on 24.07.2012, Ld. CJM, Gurgaon has framed charge against Respondent No. 1 under Section 279 and 304A of IPC.
23. In this claim petition, no other witness was examined by the claimants and no witness was examined by any of the respondents.
24. On the basis of pleadings of parties, issuewise MACT No. 196/12 Smt. Kamli @ Kamla Devi & Ors. Vs. Shri Praveen Kataria & Ors. Page 7 of 16 MACT No. 247/12 Shri Pawan Vs. Shri Praveen Kataria & Ors. findings are as under: ISSUE NO. 1:
25. Burden of proving this issue is on the claimants.
26. For succeeding in a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, the claimants have to show that the death of the deceased had taken place due to accident caused by the rash and negligent driving of Motor Vehicle by its driver.
27. This is sine qua non for getting the relief.
28. The unchallenged testimony of the eye witness, Shri Pawan Kumar is that the offending vehicle was being driven rashly and negligently and had come from the wrong side and had hit their motorcycle resulting in fatal injuries to the pillion rider.
29. Claimants have also filed certified copies of order passed by the Ld. CJM, Gurgaon framing charges against the driver / Respondent No. 1 under Section 279/304A of IPC which is also prima facie suggestive of negligence of Respondent No. 1 in causing the accident.
30. Moreover, in the case of National Insurance Co. Ltd. v. Vijay Laxmi & Ors.: MAC APP. No. 375/06, the Hon'ble High Court of Delhi in its judgment dated 05.07.2012 has held as under: "8. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Supreme Court held that in a petition under Section 166 of the Act, the Claimants were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of the report is extracted hereunder: MACT No. 196/12 Smt. Kamli @ Kamla Devi & Ors. Vs. Shri Praveen Kataria & Ors. Page 8 of 16 MACT No. 247/12 Shri Pawan Vs. Shri Praveen Kataria & Ors.
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was 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."
9. The report in Bimla Devi (Supra) was relied on by the Supreme Court in its latest judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."
31. In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors.: 2009 ACJ 287, the Hon'ble High Court of Delhi has held that: "The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. Meena Variyal (Supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in F.I.R No. 955 of 2004, pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet under Sections 279/304A, Indian Penal Code against the driver; (iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicles Act are not MACT No. 196/12 Smt. Kamli @ Kamla Devi & Ors. Vs. Shri Praveen Kataria & Ors. Page 9 of 16 MACT No. 247/12 Shri Pawan Vs. Shri Praveen Kataria & Ors.
akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver."
32. In the case of Ranu Bala Paul & Ors. v. Bani Chakraborty & Ors.: 1999 ACJ 634, the Hon'ble Gawhati High Court has observed as under: "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 a summary inquiry and this is a legislation for the welfare of the society."
33. This case was noticed by Hon'ble High Court of Delhi in the case titled as Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh: 2009 (3) AD (Delhi) 310 where adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the MACT No. 196/12 Smt. Kamli @ Kamla Devi & Ors. Vs. Shri Praveen Kataria & Ors. Page 10 of 16 MACT No. 247/12 Shri Pawan Vs. Shri Praveen Kataria & Ors. written statement. It was noted that there is nothing on record to show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.
34. Therefore, this issue is decided in favour of the claimants and against the respondents. ISSUE NO. 2:
35. First, compensation payable to claimants Smt. Kamli @ Kamla Devi & Ors. in Claim Petition No. 196/12 is being taken up for consideration.
36. There is no evidence of educational qualifications or income of the deceased. Therefore, the deceased shall be treated as an unskilled workman whose wages on the date of accident i.e. 18.11.11 were Rs. 6,656/ per month.
37. Since there are six claimants, 1/4th is to be deducted for personal expenses of the deceased and after such deduction, loss for the family would be Rs. 4,992/ per month.
38. Since the deceased was 47 years of age, 30% is to be added on this amount for loss of future prospects.
39. For awarding compensation for loss of future prospects, reliance is placed on a judgment of the Hon'ble High Court of Delhi in the case of ICICI Lombard General Insurance Co. Ltd. v. Angrez Singh & Ors., MAC APP. No. 846/11 dated 30.09.13.
40. Once Rs. 1,497.60 is added to Rs. 4,992/, the financial loss for the family will be Rs. 6,489.60 per month or Rs. 77,875.20 per annum.
41. As the deceased was 47 years of age at the time of accident, applying a multiplier of 13, total loss for the family will be Rs.
MACT No. 196/12 Smt. Kamli @ Kamla Devi & Ors. Vs. Shri Praveen Kataria & Ors. Page 11 of 16MACT No. 247/12 Shri Pawan Vs. Shri Praveen Kataria & Ors. 10,12,377/.
42. Additionally, relying on Rajesh & Others Vs. Rajbir Singh & Others, 2013(6) SCALE 563, the widow of the deceased is awarded a compensation of Rs.1,00,000/ for Loss of Consortium, children of the deceased are awarded a compensation of Rs. 1,00,000/ for Loss of Love and Affection, Care and Guidance and the claimants are also awarded a compensation of Rs. 25,000/ for Cremation Charges. Claimants are also awarded a compensation of Rs. 10,000/ for Loss of Estate.
43. Therefore, total compensation payable to the claimants would be Rs. 12,47,377.60 which shall be payable within 30 days with interest @ 7.5% per annum from the date of filing of this claim petition i.e. 07.02.2012 till its realization.
44. Compensation awarded vide interim award, if any, shall be deducted from this amount.
45. Insurance company has not proved any defence.
46. Therefore, compensation shall be deposited by the Insurance Company within 30 days from today under intimation to claimants as well as to their counsel by registered post.
47. In case even after passing of 90 days, Insurance Company fails to deposit this compensation, it shall be recovered by attaching its bank account with a cost of Rs. 5,000/ as per directions of the Hon'ble High Court of Delhi in the case of New India Assurance Co. Ltd. v. Kashmiri Lal & Ors., 2007 ACJ 688.
48. While recording financial needs of the widow of the deceased, she had stated that she has borrowed Rs. 5 to 7 lacs after the MACT No. 196/12 Smt. Kamli @ Kamla Devi & Ors. Vs. Shri Praveen Kataria & Ors. Page 12 of 16 MACT No. 247/12 Shri Pawan Vs. Shri Praveen Kataria & Ors. death of her husband and she has to return that amount. Therefore, following directions are given for apportionment of compensation:
1. 20% out of the total compensation awarded in favour of claimants with proportionate interest shall be payable in favour of Claimant No. 1, widow of the deceased. This amount shall be deposited by the insurance company with SBI, Dwraka Courts Branch, New Delhi in the name of Smt. Kamli @ Kamla Devi. To enable claimants return loan, 50% shall be released in her favour immediately. Balance compensation shall be deposited in 5 FDRs of equal amount for a period of 1 to 5 years. Monthly interest will be credited in the Saving Bank Account of Claimant No. 1 regularly.
2. 20% out of the total compensation awarded in favour of claimants with proportionate interest shall be payable in favour of Claimant No. 2, son of the deceased. This amount shall be deposited by the insurance company with SBI, Dwraka Courts Branch, New Delhi in the name of Shri Ashok Kumar. To enable claimants return loan, 75% shall be released in his favour immediately. Balance compensation shall be deposited in 3 FDRs of equal amount for a period of 1 to 3 years. Monthly interest will be credited in the Saving Bank Account of Claimant No. 2 regularly.
3. 20% out of the total compensation awarded in favour of claimants with proportionate interest shall be payable in favour of Claimant No. 3, son of the deceased. This payment shall be deposited by the Insurance Company with SBI, Dwarka Courts Branch, New Delhi in the name of Shri Kalu Ram. To enable claimants return loan, 75% shall be released in his favour immediately. Balance compensation shall be deposited in 3 FDRs of equal amount for a period of 1 to 3 years.
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Monthly interest will be credited in the Saving Bank Account of Claimant No. 3 regularly.
4. 20% out of the total compensation awarded in favour of claimants with proportionate interest shall be payable in favour of Claimant No. 4, daughter of the deceased. This payment shall be deposited by the Insurance Company with SBI, Dwarka Courts, New Delhi in the name of Ms. Kiran Kumari. This compensation will be kept in an FDR till the time she attains the age of 21 years. Monthly interest will be credited in the Saving Bank Account of Claimant No. 1 so that she can use it for maintenance of Claimant No. 4.
5. 10% out of the total compensation awarded in favour of claimants with proportionate interest shall be payable in favour of Claimant No. 5, Mother of the deceased. This amount shall be deposited by the Insurance Company with SBI, Dwraka Courts Branch, New Delhi in the name of Smt. Panchi Devi. This compensation shall be released in her favour forthwith considering her advanced age.
6. 10% out of the total compensation awarded in favour of claimants with proportionate interest shall be payable in favour of Claimant No. 6, Father of the deceased. This amount shall be deposited by the insurance company with SBI, Dwraka Courts Branch, New Delhi in the name of Shri Mahadev Singh. This compensation shall be released in his favour forthwith considering his advanced age.
7. All the original FDRs shall remain with the bank. Only copies thereof will be given to the claimants. However, pass books will be given to the claimants. No cheque book shall be issued to the claimants.
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8. No loan or advance will be given against these deposits.
9. FDRs shall not be prematurely encashed without leave of this Tribunal.
10.Claimants shall be free to get their accounts / FDRs transferred to any other Branch of State Bank of India, if so desired.
49. Nazir of this Court will also send intimation of deposit of compensation to the claimants as well as to their counsel.
50. The address of the counsel for the claimants for effecting service of notice of deposit of compensation is as under: Shri Upender Singh & Co.
Chamber No. K56, Tis Hazari Court, Delhi - 110 054.
Mobile No. 9810325185.
51. Ahlmad will put up this file with a report from the Nazir regarding deposit of compensation again on 08.06.2014.
52. Copy of this order be given to all the parties.
53. Copy of this order be also sent to the SBI, Dwarka Court Branch, New Delhi.
54. Claimants will file two sets of their photographs, specimen signatures/thumb impression and residence proof so that one set can be retained on the file of this Tribunal and one set can be sent to the bank.
55. Now, compensation payable to Sh. Pawan in Claim Petition No. 247/12 is taken up for consideration.
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56. This claimant has not filed any medical record or bills for his treatment.
57. He was examined by the Medical Board of DDU Hospital which has opined that he has suffered 30% permanent disability in relation to left upper limb.
58. However, Insurance Company examined the doctor who had made the MLC as R3W2. This doctor stated clearly that the right thumb of the claimant was already amputated when the MLC was made. Therefore, disability suffered by this claimant is not due to accidental injuries.
59. Considering the fact that this claimant has tried to mislead the Tribunal, the least penalty which this claimant should suffer is that he should not be awarded any compensation. Therefore, no compensation is awarded in Claim Petition No. 247/12.
60. File be consigned to the Record Room. Announced in the Open Court On the 6th day of March, 2014.
(ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
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