Delhi District Court
Shri Nasir Hussain S/O Late Taj Mohd. @ ... vs Asif Ali S/O Asraf Ali R/O Mohd.Shivpuri on 3 July, 2007
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IN THE COURT OF SHRI DINESH KUMAR SHARMA, JUDGE
MACT, NEW DELHI
Suit No.608/07
1. Shri Nasir Hussain s/o Late Taj Mohd. @ Tajuddin
2. Shri Wasid Ali s/o Late Taj Mohd. @ Tajuddin
3. Hasmeen D/o Late Taj Mohd. @ Tajuddin
4. Swaleen s/o Late Taj Mohd. @ Tajuddin
(Petitioners being minors are represented through their
guardin Sh.Meenu Khan)
All resident of Mohalla Paith Wala,Kasba Dankaur
District Gautam Budh Nagar, U.P
... Petitioners.
VERSUS
1. Asif Ali s/o Asraf Ali r/o Mohd.Shivpuri ,
Buland Shahar, U.P.
2. Shri Dinesh Kumar s/o Shri Kanwar Pal Singh,
r/o Village Khagrai, P.O.Hussainpur,
Distt. Forozabad, U.P.
3. The New India Assurance Co. Ltd.,
Gulab Bhawan, Ist floor, Bahadur Shah Zafar Marg,
New Delhi.
.... RESPONDENTS
Date of filing of petition:13.8.2001 Date of assignment to this court: 19.7.07 Date of award:03.07.2007 AWARD The facts in brief are that Shri Taj Mohd. alias Tajuddin met with a road accident on 27.1.2001 while he was going in vehicle No.UP-80T-9387 for the purpose of 2 supplying the goods (bread). It has been alleged that Asif Ali (R-1) was driving the aforesaid vehicle in a rash or negligent manner and hit against another vehicle No.DL 1LC 9504. In the said accident Shri Taj Mohammad suffered fatal injuries and was declared brought dead in the hospital. Shri Dinesh Kumar (R-2) was the owner of the offending vehicle and it was insured with New India Assurance Company (R-3). The deceased was only 32 years of age at the time of accident and he left behind his old mother, young widow and four children. A case FIR No.42//2001 under section 279/304-A IPC was lodged at police station Connaught Place. The petitioners filed this petition under section 166 Motor Vehicle Act claiming compensation of Rs.10,00,000/-.
2. Upon the petition being filed, summons were sent to the respondents. R1 did not appear despite being served and were proceeded exparte vide order dated 18.1.2002 and 2.11.2001respectively. R-3 in its written statement though admitted that offending vehicle was duly insured with them however it was 3 pleaded that they are not liable to pay the compensation as R-1 was not holding a valid and effective driving license at the time of accident. It was further pleaded that their insured has not intimated about the said accident and therefore petitioner be put to strict proof of the accident. During the pendency of the proceedings the widow and mother of the deceased also expired and therefore an application was moved for allowing the brother of the deceased to proceed with the petition as guardian of petitioner No.2 to Petitioner No.5. Petitioners No.2 to 5 were the minor and taking into account the fact that applicant Shri Meenu Khan had no interest adverse to that of the petitioenrs , my learned predecessor allowed this application vide order dated 31.7.2006. On the pleadings of the parties the following issues were framed vide order dated 225.7.2002:-
1) Whether Taj Mohammad @ Tajruddin died due to rash and negligent driving of the driver of Tata 407 bearing registration No.UP 807- 9387?
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1) Whether the driver of the offending vehicle did not possess a valid and effective driving license as on the date of the accident.?
2) Whether the deceased himself was responsible for the accident?
3)Whether the petitioners are entitled to compensation, if so to what amount.
4)Relief.
An interim award u/s 140 Motor Vehicle Act was passed vide order dated 18.1.2002.
3. Smt.Gulshan (since deceased) widow of the deceased examined herself as PW1. SI MukeshKumar Investigating Officer has been examined as PW2. The respondents did not lead any evidnece. 4 . I have heard learned counsel for parties perused the record carefully. I propose to give my findings on the issues as follows:-
ISSUE NO. 1 & 3 5. I propose to dispose of issue No.1 and 3 5
together. The Insurance Company has contended that since the petitioners have failed to prove the negligence of R-1, the petition is liable to be dismissed. On the other hand learned counsel for petitioner has submitted that merely because the eye witness has not been examined, the petition cannot be rejected. In support of his contention learned counsel for petitioner has cited Paramjit Kaur and another Vs. Murarilal Shankya and others, 2005, ACJ 401. It was held in para 10 that:-
"As regards the rash and negligent driving is concerned, burden was upon the driver of the offending vehicle to prove that there was no negligence on his part. Driver has not entered the witness box. Even otherwise, U/ S 166 of the new Motor Vehicle Act it is sufficient to prove there was an accident and question of rash and negligent driving is not essential. Section 166 of the motor Vehicles Act provided that the application for compensation arising out of an accident of the nature specified in sub section (1) of Section 6 165 shall be filed. Section 165 (1) provides that the State Government may, by notification in the official Gazette, constitute one or more Motor Accidents Claims Tribunals for such area as may be specified in the notification for the purpose of adjudication upon claims for compensation in respect of accident involving the death of, or bodily injury to, persons arising, or both. Thus if the accident has arisen out of the use of motor vehicle then the claimants are entitled for compensation. It is not necessary to prove rash and negligent driving. Since, it is admitted by the owner and driver that the accident has arisen of use of offending truck driven by the respondent no.1, we hold that claimants are entitled for compensation."
6. In the above noted case also the petitioner has not examined any eye witness.
7. The petitioners have placed on record certified copy of charge sheet filed against R-1 u/s 279/304-A IPC. The 7 certified copy of site plan, mechanical inspection report and post mortem report has also been filed. The post mortem report transpires that the cause of death is haemorrhagic shock due to blunt force impact to abdomen . It was further opined that all injuries were ante-mortem in nature and recent duration.
8. The perusal of the charge sheet also indicates that Shri Taj Mohd. died on the spot. R-1 and R-2 did not come forward to contest the case and choose to remain exparte. It is a settled proposition that in case charge sheet has been filed against the driver of the alleged offending vehicle, the factum of accident and involvement of vehicle stands prima-facie proved unless denied by the opposite party. In this case reference can be made to In this regard reference can be made to Bala & Ors Vs. Moti Chand Gupta & Others 2003 VIII AD (Delhi) 256, our own Hon'ble High Court held as under:-
" Plain reading of Section 158(6) and Section 166 (4) of the Act shows that even the charge sheet submitted by the Police Officer to the Tribunal is to be 8 treated as an application for compensation by the claims tribunal. Once the charge-sheet is forwarded to the claims tribunal, the tribunal is immediately made aware that the accident has been caused by the offending vehicle and the tribunal in that case is not required to go into any further technicality to direct the claimants to still prove that the offending vehicle was involved in the accident unless, of course, the party opposing the petition denies the involvement of such vehicle."
9. R-1 and R-2 did not come forward to deny the involvement of vehicle and factum of accident. Thus in these circumstances the involvement of vehicle and factum of accident stands prima-facie proved. The post mortem report also indicates that the death took place on account of injuries suffered in the accident. In these circumstances the onus stood shifted upon R-1 to prove that there was no negligence on his part. However, R-1 did not come forward to discharge this onus. It is settled proposition that a party is supposed to 9 produce the best possible evidence. The victim in this case has died and therefore the only person left to know about the facts leading to the accident was R-1 and R-1 in the present case did not come forward to apprise the court about the same. In these circumstances adverse inference can also be drawn against him. In this regard reference can also be made to Smt.Anita Devi and others vs. Mahinder Singh & others FAO No.33/2001 decided on 21.3.2007 in which it was inter-alia held as under:-
"In civil proceedings or proceedings under the Act, the question of negligence is decided on the basis of preponderance of probabilities. Burden of proof is a matter of law and pleadings. However, onus and discharge of the same is a matter relating to adducing of evidence. Normally, onus to prove negligence in a claim under section 166 of the act is upon the claimant. But in some cases this normal rule can cause considerable hardship. This can happen when the reason and true cause of the accident are only within the knowledge of the respondent. In such cases, it is impossible for the claimant to establish negligence on the part of the respondent. Inference as to 10 negligence may be drawn by courts and tribunals from proved circumstances by applying Rule of Res Ipsa Loquitor."
"In the claim petition it is specifically mentioned that the deceased was knocked down by the bus. The nature of injuries suffered by the deceased as per medical reports show that the bus had run over the deceased and his skull was crushed. These facts indicate unequivocally that the bus in question at the morning hours was being driven at a reasonably fast speed and had hit the scooter from the back side crushing the skull of the deceased. Admittedly, as per the respondent insurance company and the police there was no eye witness to the accident. The victim has expired. In these circumstances, I feel principles of res ipsa loquitur should be applied. Both the driver and the owner of the bus have failed to enter appearance. The respondents have failed to lead evidence to rebut and establish the cause of the accident. Accordingly, the respondents are held liable to pay compensation to the appellants in the claim petition filed under Section 166 of the Act."11
10. Petitioners have also examined SI Mukesh Kumar I.O as PW 2. PW 2 stated that on receipt of information about the accident he reached on the spot and found two vehicles No. UP-80 T-9387 and DL-IL C 9504 in accidental condition. PW 2 also proved the certified copy of the site plan as Ex.PW1/2. I.O stated that he had also recorded the statement of an eye witness who had stated that the accident took place on account of the negligence of R-1.
11. In these circumstances I consider that since R-1 has not come forward and the petitioners have proved the best possible evidence under their control it can safely be concluded that Sh.Taj Mohd. died on account of the injuries suffered in the accident due to rash and negligent driving of R-1.
ISSUE No.2
12. The respondent/Insurance Company took a plea in their written statement that they are not liable to pay the compensation in case it is proved that R 1 was not holding a valid and effective driving license at the 12 time of accident. However, the respondents have not brought any material on record so as to prove that R-1 was not holding a valid and effective driving license at the time of accident. It seems that the respondent/insurance company took a plea only for the sake of taking a plea. In these circumstances I consider that there is nothing on the record to prove that R 1 was not having a valid and effective driving license at the time of accident.
ISSUE No.4.
13. Smt.Gulshan (since deceased) widow of the deceased has stated that deceased was 30 years of age at the time of accident and he left the petitioners as his legal representatives. It was further stated that deceased used to earn Rs.4000/- to Rs.6,000/- p.m. Admittedly no income proof has been filed. In the absence of any income proof, I consider that the safest course is to resort to the minimum wages at the relevant time. In January 2001, the minimum wages of an unskilled worker was Rs.2524 p.m. The deceased was 30 years of age. Had he not died this untimely death, he 13 would have to live atleast for another 20 to 30 years. The bare perusal of the minimum wages chart indicate that in around 10 years the minimum wages has risen to more than 100%. The minimum wages of an unskilled worker was Rs.1784/- in 1997 which had risen to Rs.3470 in February 2007. In this regard reference can also be made to MAC Appeal No.14/07 in case titled as M/s Oriental Ins. co. vs. Putul Devi & Others decided on 09.1.2007 by Hon'ble Mr.Justice Pradeep Nandrajog which reads as under:-
" .... On the issue of loss of
dependence,holding that no satisfactory
proof of the income of the deceased was forthcoming on record, learned tribunal proceeded to assess the income of the deceased in relation to the minimum wages determined and notified by the government pertaining to unskilled labour. Noting that unskilled labour was paid minimum wages of Rs.750/- per month as on 1.5.1989 which orse to Rs.3044/- per month as on 1.2.2005, learned tribunal has treated minimum wages as on date of death of deceased, which I note is the date of accident, at Rs.2579/-. Giving 14 benefit of future prospects of wage increase, learned Tribunal has doubled the minimum wages and has taken the mean figure i.e. Rs.2579 + Rs.5158, divided by 2 = Rs.3868/-.
Multiplier of 18 has been adopted.
1/3 rd has been deducted towards the personal expenses of the deceased. Thus, loss of dependence worked out is Rs.2579 x 12 x 18= Rs.5,57,064/-.
Limited challenged is raised by urging that there is no proof of future advance in the minimum wages.
Futuristic vision has obviously to be taken in respect of the events of the past. The learned trial court has looked into the past and has noted that pertaining to unskilled labour,minimum wages rose from Rs.750/- per month as on 1.5.1989 to Rs.3044/- per month as on 1.2.2005. The percentage increase comes to nearly 360%. This 360% increase is in a span of less than 6 years. On a multiplier of 18, it could perfectly be held that over the next 18 years, minimum wages would rise, if not more, at least to double the figure. "
14. Taking into account, the average income of the deceased can be taken as Rs.2524 + 5048 divided by 2 which comes out to Rs.3786 out of which I consider that 15 1/3rd is required to be deducted on account of personal expenses of the deceased which comes to Rs.1262/-
p.m. Thus the monthly loss of financial dependency of the petitioners comes to Rs.2524 p.m. It annually comes to Rs.30288/-. The deceased was stated to be more than 30 years of age. I consider that at the age of 30 the appropriate multiplier would be of 15. Adopting the multiplier of 15 the compensation comes to Rs.30288 x15= 454320/-. In addition to it a sum of Rs.10,000/- on account of funeral expenses shall meet the ends of justice. Thus the total compensation comes to Rs.4,64,320/- R-1 to R 3 are jointly and severally liable to pay the compensation. However R3 being insurance company is liable to pay the payment of compensation.
Relief
15. In view of the discussion made herein above, I consider and hereby pass an award in the sum of Rs.4,64,320/- which I consider to be just and fair as on the date of accident. The petitioners are also entitled interest @ 7% p.a. for forbearance and detention of money from the date of filing of the petition till realization.
R 3 is directed to deposit the awarded amount along 16 with interest @ 7% p.a. from the date of filing of the petition till its realization. Out of the amount awarded let 40% be paid to petitioner No.3, and 20% each to petitioners No.1, 2 and 4. The share of minor children be deposited in FDR in a Nationalized Bank till they attain the age of majority. However Shri Meenu Khan shall be entitled to withdraw the interest for meeting the educational expenses of the children till they attain the age of majority. Copy of the award be supplied to both the parties. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT Dated on 03.07.2007 (DINESH KUMAR SHARMA) JUDGE:MACT/NEW Delhi