Delhi District Court
Sh. Paramjeet Kour vs Sunil Kumar on 19 January, 2018
IN THE COURT OF SH SANJAY SHARMA, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL : EAST DISTRICT :
KARKARDOOMA COURTS : DELHI
DAR No.: 201/17
Unique Case I.D. No.: 1519/2017
1. Sh. Paramjeet Kour
W/o Late Charanjeet Singh
2. Smt. Tej Kour
W/o Late S. Gurbaksh Singh
3. Master Prabhjot Singh
S/o Late Charanjeet Singh
4. Baby Dilpreet Kour
D/o Late Charanjeet Singh
All R/o Ward No. 2, Bhour Camp,
Chhata Farm, PS Satwari,
Jammu- 181101
..... Petitioners
VERSUS
1. Sunil Kumar
S/o Sh. Naresh Kumar
R/o Ward N. 9, Radha Swami Mohalla,
PS Mukerian, Distt. Hosiarpur,
Punjab-144211
..... Driver-owner
2. National Insurance Co. Ltd.
2E/9, Jhandewalan Extension,
New Delhi-110055
..... Insurer
..... Respondents
Date of institution : 23.02.2017
Reserved for orders : 12.01.2018
Date of Award : 19.01.2018
JUDGMENT
DAR No.: 201/2017 Paramjeet Kour & Ors. vs Sunil Kumar & Anr. 1 of 25 Introduction:
1. Mr. Charanjeet Singh, about 50 years, born on 04.08.1966, professional driver, died in a motor-vehicular accident that occurred at 1.15 p.m. on 06.01.2017 in bakra mandi parking, Ghazipur, Delhi involving Truck bearing registration No. PB 07 AS 8137 (offending vehicle) allegedly due to rash and negligent driving of the respondent No.1.
2. On 06.01.2017 at about 12.30 p.m. Mr. Charanjeet Singh (the deceased) alongwith PW-2 Mohan Lal, helper reached bakra mandi parking, Ghazipur, Delhi from Azadpur mandi with his Truck bearing registration No. JK 02A M2487. After parking the said truck, they had lunch in the driver's cabin.
3. At about 1.15 p.m., the deceased and PW-2 Mohan Lal got down from the said truck and were standing behind their truck. At that time, the offending vehicle driven by the respondent No. 1 came there in high speed and had had hit the truck bearing registration No. JK 02A M2487 and thereby, the deceased got crushed between the said truck and the offending vehicle. PW-2 Mohan Lal with the help of other people apprehended the respondent No. 1 at the place of accident. At 3.45 p.m., the deceased was declared brought dead by LBS Hospital, Khichripur, Delhi. The petitioners being wife, children and mother of the deceased instituted the accident claim case in the context of Detailed Accident Report (DAR) instituted on the basis of evidence collected in the corresponding criminal case vide FIR No. 05/17 under section 279/304A of the Indian Penal Code, 1860 (IPC) registered at PS Ghazipur, on the statement of PW-2 Mohan Lal, at 04.40 p.m. on 06.01.2017.
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4. Subsequent thereto, the petitioners filed petition under section 166 read with section 140 of the Motor Vehicles Act, 1988 (MV Act) for seeking compensation for the death of the deceased impleading, interalia, the respondent No. 1 being the driver and registered owner of the offending vehicle and the respondent No. 2 (insurer), it concededly insured the offending vehicle against third party risk for the period in question.
5. On being noticed, the respondent No. 1 filed written statement. He denied his involvement in the accident. He contended that the accident was caused by an unknown vehicle. He stated that the offending vehicle had not even passed through the place of accident. He stated that he was holding valid driving license and he had got his driving license renewed within the prescribed period. The offending vehicle was duly insured with the respondent No. 2 for the period in question.
6. The respondent No. 2 / insurer, in its reply, pleaded breach of terms and conditions of insurance policy on the ground that the driving license of the respondent No. 1 was not valid on the date of accident. It contended that the respondent No. 1 has been prosecuted for offence under section 3/181 of MV Act. It contended that it is not certain that the offending vehicle was insured with it. It stated that the respondent No. 1 got Ashok Leyland Truck having chassis No. RYP7779 and Engine No. HZU422907 insured with it w.e.f. 08.09.2016 to mid night of 07.09.2017 under package policy in his name. It stated that the respondent No. 1 has neither intimated the registration number nor provided registration certificate of the said truck.
DAR No.: 201/2017 Paramjeet Kour & Ors. vs Sunil Kumar & Anr. 3 of 25 Issues:
7. On the pleadings, following issues were framed:
i) Whether Mr. Charanjeet Singh, age 44 years, died in road accident on 06.01.2017 at about 1.15 p.m. at bakra mandi parking, Ghazipur, Delhi within jurisdiction of PS Ghazipur due to rash and negligent driving of Truck bearing registration No. PB 07 AS 8137 by the respondent No.1?
(OPP)
ii) Whether the Respondent No. 1 / driver was holding a valid and effective driving license to drive the offending vehicle at the time of accident?
(OPR1)
iii) Whether there was breach of any term and condition of insurance policy?
(OPR2)
iv) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
(OPP)
v) Relief Evidence:
8. PW-1 Paramjeet Kaur, wife of the deceased, filed her affidavit in evidence. She relied upon her aadhaar card Ex.PW1/1, aadhaar card of the deceased Ex.PW1/2, aadhaar card of Dilpreet Kour Ex.PW1/3, aadhaar card of Prabhjot Ex.PW1/4, aadhaar card of Smt. Tej Kour Ex.PW1/5 and Detailed Accident Report (DAR) Ex.PW1/6.
9. The Tribunal, vide order dated 11.08.2017, called further evidence for ascertaining avocation, income and expenses of the deceased.
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10. PW-1 Paramjeet Kaur, in her further examination, stated that the deceased was the owner of the truck bearing registration No. JK 02 AM 2487. She stated that the deceased used to drive the said truck. She stated that the deceased was paying monthly installments of Rs. 3,750/- per month to the financier / Karan Motors. She stated that Dilpreet Kaur is studying in 3rd standard and Prabhjot Singh is studying in 7 th standard in St. Peters Higher Secondary School, Jammu. She stated that she was paying Rs. 1200/- per month for private transportation. She stated that her husband used to give about 20,000 to 30,000/- per month. She relied on registration certificates of Truck No. JK 02 AM 2487 Ex.PW1/7 to Ex.PW1/9 respectively, verification report of national permit of the said truck EX.PW1/10, authorization certificate of the said truck Ex.PW1/11, fitness certificate of the said truck Ex.PW1/12, insurance policy of the said truck for the period from 23.11.2016 to 22.11.2017 Ex.PW1/13, verification report of driving license of the deceased Ex.PW1/14, copy of driving license of the deceased Ex.PW1/15, certificate of the statement of the account of the loan amount financed to the deceased issued by M/s Karan Motors, Jammu alongwith a copy of register containing the said transaction Ex.PW1/16 and Ex.PW1/17 respectively, certificates of tuition fees of Dilpreet Kour for the academic session 2016-17 and 2017-18 issued by St. Peter's Higher Secondary School, Jammu Ex.PW1/18 and Ex.PW1/19 respectively, certificates of tuition fees of Prabhjot Singh for the academic session 2016-17 and 2017-18 issued by St. Peter's Higher Secondary School, Jammu Ex.PW1/20 and Ex.PW1/21.
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11. PW-1 Paramjeet Kaur relied on letter issued by transporter providing transportation services to Prabhjot Singh and Dilpreet Kour Ex.PW1/22 and death certificate of the petitioner No. 2 / Smt. Tej Kour Ex.PW1/23.
12. PW-2 Mohan Lal is the complainant. He deposed about the manner of accident. He relied upon his voter I-card Ex.PW2/1.
13. PW-2 Mohan Lal was re-examined by the Tribunal. In his re-examination, he stated that he was working as a helper with the deceased since 6-7 years. He stated that the deceased used to pay him Rs. 1500/- per trip. He stated that he used to accompany the deceased once or twice in each month. He stated that the deceased was also paying him Rs. 2,000/- per month as salary. He stated that they used to take trips only for Sri Nagar and Delhi.
14. The respondent No. 2 examined R2W1 Jaswinder Singh, Clerk, District Transport Officer, Jalandhar, Punjab. He proved authorization letter Ex.R2W1/1. He proved the record pertaining to driving license of the respondent No. 1 alongwith screen report of fees history and certificate under Section 65(B) of the Indian Evidence Act Ex.R2W1/2 (colly.), application for renewal of license which was filed on 25.01.2017 Ex.R2W1/3A, declaration of physical fitness Ex.R2W1/3B alongwith fees receipt deposited on 25.01.2017 Ex.R2W1/4, Verification report issued by DTO, Amritsar Ex.R2W1/5 and Certificate of Training Ex.R2W1/6. He deposed, on the basis of record, that the driving license of the respondent No. 1 expired on 23.12.2016 and it was not valid on the date of accident i.e. 06.01.2017.
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15. R2W2 Vineet Kumar, Assistant, National Insurance Company proved the notice under Order 12 Rule 8 CPC Ex.R2W2/1 and its postal receipt Ex.R2W2/2. He stated the respondent No. 1 had not given any response to the said notice. He proved a copy of insurance policy Ex.R2W2/3. He stated that the respondent No. 1 was not holding a valid driving license and it amounted to violation of terms and conditions of insurance policy and therefore, the respondent No. 2 is not liable to indemnify the insured.
Final arguments:
16. I have heard arguments of Sh. Gurmit Singh Hans, Advocate for the petitioners, Sh. Naresh Kumar, Advocate for the respondent No. 1 / driver-owner and Ms. Shalini Upadhyay, Advocate for the respondent No. 3 / insurer and examined the evidence, oral and documentary.
Issue wise finding:
i) Whether Mr. Charanjeet Singh, age 44 years, died in road accident on 06.01.2017 at about 1.15 p.m. at bakra mandi parking, Ghazipur, Delhi within jurisdiction of PS Ghazipur due to rash and negligent driving of Truck bearing registration No. PB 07 AS 8137 by the respondent No.1?
(OPP)
17. In order to prove rash and negligent driving of the offending vehicle, the petitioners examined PW-2 Mohan Lal. In his evidence, he deposed that on 06.01.2017 at about 12.30 p.m., he alongwith the deceased came towards the rear side of the truck and looking their truck. He stated that he saw that suddenly, a truck bearing registration No. PB 07 8137 came from the opposite side in high-speed without blowing horn and hit their truck from behind.
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18. PW-2 Mohan Lal stated that the deceased came in between both the trucks and suffered crush injuries and died on the spot. In his cross-examination, he stated that he was looking towards his truck and therefore, he had not seen the offending vehicle coming towards their truck. He stated that the driver of the offending vehicle had not fled from the place of the accident. He stated that he was standing alongwith the deceased at the time when he was hit by the offending vehicle. He stated that there was gap of about one meter between him and the deceased.
19. Ld. Counsel for the petitioners submitted that the petitioners have proved rash and negligent driving of the offending vehicle. He submitted that PW-2 Mohan Lal proved that the respondent No. 1 was driving the offending vehicle in a rash and negligent manner. He submitted that the offending vehicle and the respondent No. 1 were apprehended at the place of the accident. He submitted that the evidence collected during the investigation fortifies the case of the petitioners.
20. Ld. Counsel for the respondent No. 2 / insurer argued, on the basis of the cross-examination of PW-2 Mohan Lal, that PW-2 Mohan Lal categorically admitted that he had not seen the offending vehicle coming towards the truck and therefore, his evidence is not relevant to prove rash and negligent driving of the offending vehicle.
21. On careful examination of the evidence of PW-2 Mohan Lal and the evidence collected during the course of investigation, it is evident that the deceased died due to rash and negligent driving of the offending vehicle.
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22. PW-2 Mohan Lal proved that on 06.01.2017 at about 12.30 p.m., he alongwith the deceased was standing on rear side of their truck in the parking of bakra mandi, Ghazipur, Delhi. He proved that the offending vehicle driven by the respondent No. 1 hit the deceased and resultantly, the deceased was crushed between his truck and the offending vehicle. The fact that PW-2 Mohan Lal had not seen the offending vehicle coming towards the truck of the deceased would not make any difference as he had seen the offending vehicle hitting the deceased and the respondent No. 1 driving the offending vehicle. The respondent No. 1, in his written statement, denied the accident and attributed the accident to some other vehicle. However, he neither appeared in the witness box to depose his case nor made any suggestion regarding involvement of any other vehicle in the accident. The respondent No. 1 and the offending vehicle were apprehended from the spot.
23. The corresponding FIR was registered promptly on 06.01.2017 at 4.40 p.m. within 4 hours after the accident. The evidence of PW-2 Mohan Lal is in sync with his statement, as recorded in the FIR. SI Arun Kumar found the truck of the deceased and the offending vehicle in accidental condition at the place of the accident. He found the deceased in dead condition. The offending vehicle and the truck of the deceased were seized from the place of the accident. Mechanical Inspection Report (MIR) of the offending vehicle would show that it had damages on its front bumper with dried blood marks, right front mud-guard and front tyres.
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24. Mechanical Inspection Report of the truck of the deceased would show that it had suffered damage on left rear lower steel channel.
25. It is therefore, established that the accident in question had taken place in the parking of bakra mandi, Ghazipur, Delhi. It is established that the respondent No. 1 was driving the offending vehicle at the time of the accident. It is established that the offending vehicle had hit the deceased who crushed between the offending vehicle and his truck and died on the place of the accident. The respondent No. 1 has not explained as to why he could not avoid the accident. He has not explained as to why he had not blown the horn of the offending vehicle so as to put the deceased on caution. The place of the accident is a parking place. It was meant for parking of vehicles. The respondent No. 1 should have driven the offending vehicle in slow speed while taking the offending vehicle inside the parking. He should have blown the horn so as to put the persons already in the parking on guard. The fact that the deceased died on the place of the accident immediately after the accident due to the injuries suffered by him is an evidence of the impact of the hit generated by the offending vehicle. It is established that the offending vehicle was being driven rashly and negligently by the respondent No. 1 and while driving so, he had hit the offending vehicle against the deceased who was standing behind his truck and resultantly, he got crushed between the two trucks.
26. Post-mortem report of the deceased would prove that he died due to 'head injury on account of blunt force impact'.
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27. It is therefore, proved that the deceased had died as a result of injuries suffered by him in an accident caused by rash and negligent driving of the offending vehicle by the respondent No. 1.
28. Accordingly, issue No. 1 is decided in favour of the petitioners and against the respondents.
ii) Whether the Respondent No. 1 / driver was holding a valid and effective driving license to drive the offending vehicle at the time of accident?
(OPR1)
29. The respondent No. 1 is the insured. It is the obligation of the insured to prove that the driver was driving the offending vehicle at the time of the accident on a valid and effective driving license.
30. The respondent No. 2 / insurer pleaded that the respondent No. 1 / driver-owner was not holding valid and effective driving license on the date of the accident.
31. The respondent No. 2 / insurer examined R2W1 Jaswinder Singh, Clerk from the office of District Transport Officer, Jalandhar, Punjab. He proved extract of driving license of the respondent No. 1 Ex.R2W1/2. He proved that the respondent No. 1 had a driving license issued by DTO, Amritsar, Punjab which was valid from 24.12.2013 to 23.12.2016 for driving LMV (GV) and transport. He proved that the driving license of the respondent No. 1 was renewed on 25.01.2017 by his office having validity up to 24.01.2020 for driving LMV (GV) and transport. He proved that the respondent No. 1 filed application for renewal of driving license Ex.R2W1/3B alongwith fee receipt Ex.R2W1/4 on 25.01.2017.
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32. It is therefore, evident that the driving license of the respondent No. 1 expired on 23.12.2016 and it was renewed on 25.01.2017. The accident in question had taken place on 06.01.2017. It is proved that the respondent No. 1 was not holding a valid and effective driving license to drive the offending vehicle on 06.01.2017.
33. Accordingly, issue No. 2 is decided in favour of the respondent No. 2 and against the respondent No. 1.
iii) Whether there was breach of any term and condition of insurance policy?
(OPR2)
34. From the evidence on record, it is established that the offending vehicle is a Heavy Goods Vehicle (HGV). It is established that the respondent No. 1 was holding a valid and effective driving license for the category of Heavy Goods Vehicle (HGV) w.e.f. 24.12.2013 to 23.12.2016. He moved an application for renewal of driving license on 25.01.2017 Ex.R2W1/3A with declaration of physical fitness Ex.R2W1/3B and fee receipt Ex.R2W1/4. The said license was renewed on 25.01.2017 with validity up to 24.01.2020. Extracts of driving license of the respondent No. 1 is Ex.R2W1/2. Training certificate issued on 19.01.2017 is Ex.R2W1/6. The accident in question had taken place on 06.01.2017. Admittedly, the respondent No. 1 was not holding a valid driving license w.e.f. 24.12.2016 to 24.01.2017.
35. Issue is that whether absence of a valid and effective driving license to drive the offending vehicle on 06.01.2017 is a fundamental breach of insurance policy.
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36. The respondent No. 1 was holding a valid and effective driving license for driving transport vehicle from 24.12.2013 to 23.12.2016. The accident in question had taken place 14 days after expiry of the driving license of the respondent No. 1. Eventually, his driving license was renewed on 25.01.2017. Therefore, absence of driving license on the date of the accident is not a fundamental breach of terms and conditions of insurance policy.
37. In Reliance General Insurance Co. Ltd. versus Son Pal & Ors., MAC APP. 700/2012 decided on 21.11.2017, fatal accident was caused by the truck on 01.04.2007. The insurance company pleaded breach of terms and conditions of insurance policy stating that the driver did not hold a valid driving license at the relevant point of time. The driver of the truck had a valid driving license, the validity of which had expired on 01.04.2006. The driver got the license revalidated on 15.05.2007. Hon'ble High Court dismissed appeal of the insurance company seeking recovery rights and observed as under:
"The issue is covered by decision of this Court in MACA 203/2015, National Insurance Company Ltd. versus Jagmohan Juneja, decided on 22.08.2017. The rule of main purpose as envisaged in National Insurance Company Ltd. versus Swaran Singh & Ors. (2004) 3 SCC 297, applies."
38. In Reliance General Insurance Co. Ltd. versus Sameer Ranjan Rout & Ors., MAC APP. 265/2015 decided on 28.08.2017, such plea has not been accepted as constituting breach of terms and conditions of insurance policy by the owner.
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39. In The Oriental Insurance Company Ltd. versus Deepa & Ors., MAC APP. 1042/2016 decided on 11.08.2017, arising from an accident case instituted on account of death of Jitender Kumar in a motor vehicular accident that occurred on 18.02.2014 due to negligent driving of a truck, the insurance company sought recovery rights on the ground that the driver was not holding a valid or effective driving license on the date of the accident. The driver held a valid and effective driving license for the vehicle in question but it expired on 28.12.2013. Hon'ble High Court of Delhi held as under:
"The fact remains that it cannot be disputed that the driver held a valid and effective driving license till 28.12.2013. It does appear that the license had expired and it may be presumed that there was no renewal so as to cover its validity for the date of accident (18.02.2014). But, this fact, by itself, cannot mean that a case of breach of the terms and conditions of the insurance policy has been properly made out. The rule of main purpose as envisaged in National Insurance Company versus Swaran Singh (2004) 3 SCC 297, will have to be borne in mind. The fact that the driver held a valid and effective driving license just less than two months prior to the date of the accident shows that he possessed the necessary skills and had the necessary competence and experience. There is nothing shown from which it could be deduced that absence of validity of the driving license on the crucial date contributed to the cause of the accident."
40. In Paramjit Singh versus New India Insurance Co. Ltd., MAC APP. 83/2008 decided on 31.05.2016, the driver had a valid and effective driving license for the period 14.02.1996 to 13.02.1999 and thereafter, another driving license for the period 23.12.1999 to 22.12.2002. The driver was not holding a valid driving license on the date of the accident 11.05.1999.
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41. On such conclusions, the plea of insurance company about breach of terms and conditions of the policy was upheld and it was granted recovery rights against the appellant / insured. Hon'ble High Court of Delhi held as under:
"The breach on account of which the insurance company's plea for recovery rights was granted cannot be said to be a fundamental breach or to have contributed to the cause for accident"
42. In Bajaj Allianz General Insurance Co. Ltd. versus Pooja Devi & Ors., MAC APP 14/2013 decided on 25.05.2016, the accident resulting into fatal injuries occurred on 06.02.2009 due to negligent driving of the truck, admittedly, insured against third party risk with the appellant. The appellant pressed for recovery rights on the ground that the driving license of the driver expired on 23.10.2008. The said license was renewed w.e.f. 11.08.2009. The driver was authorized by the licensing authority since 24.10.2003. The validity of the driving license had expired before the accident. Hon'ble High Court of Delhi dismissed the appeal with the observations, as under:
"In this fact-situation, the plea of the insurance company about breach of terms and conditions of the insurance policy cannot be accepted. Merely because the license had become invalidated for a certain period does not mean the absence of a driving license had contributed to the cause for accident for it to be treated as a fundamental breach resulting in insurer being held entitled to avoid its liability to indemnify. [see National Insurance Company versus Swaran Singh (2004) 3 SCC 297]"
43. The respondent No. 2 / insurer is liable to indemnify the liability of the respondent No. 1. Accordingly, issue No. 3 is decided in favour of the respondent No. 1 / driver-owner and against the respondent No. 2 / insurer.
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iv) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
(OPP)
44. The petitioners being wife, two minor children and mother of the deceased are entitled to seek compensation. Loss of dependency:
45. For computing the loss of dependency on account of death of the deceased, ascertainment of his income is the first step.
Assessment of income of the deceased:
46. Smt. Paramjeet Kour (PW-1) deposed, in her affidavit Ex.PW1/A, that the deceased was a truck driver and earning Rs. 40,000/- per month.
47. Ld. Counsel for the respondent No. 2 / insurer submitted that the petitioners have not led any evidence to prove avocation and income of the deceased. She submitted that the income of the deceased should be assessed on the basis of minimum wages as payable in the State of J & K at the relevant time.
48. On careful perusal of the evidence on record, it is evident that the deceased was a professional driver. It is evident from the perusal of FIR and statement of PW-2 Mohan Lal that he had driven his truck from Jammu to Delhi. Driving license of the deceased is Ex.PW1/15 and verification report thereof is Ex.PW1/14. The deceased was holding a valid and effective driving license to drive Heavy Motor Vehicle (HMV) since 2009 with validity up to 2019. It is therefore, proved that the deceased was a professional driver.
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49. The deceased was the owner of truck bearing registration No. JK 02 AM 2487. Registration certificate of the truck is Ex.PW1/7 and verification report thereof are Ex.PW1/8 and Ex.PW1/9. The deceased obtained national permit in respect of the said truck having validity up to 09.01.2018 vide Ex.PW1/10 and Ex.PW1/11. It is therefore, evidence that the deceased was driving the truck owned by him and therefore, his income cannot be assessed as that of a professional driver.
50. The deceased paid an amount of Rs. 36,801/- for insurance of the said truck for the period from 23.11.2016 to 22.11.2017. Insurance policy of the said truck is Ex.PW1/13. The deceased had obtained a loan of Rs. 1,25,000/- in respect of the said truck from Karan Motors, Jammu on 20.02.2016 which was payable by way of monthly installment of Rs. 3,750/- per month. The said truck was hypothecated with Karan Motors, Jammu. This fact is mentioned in the registration certificate Ex.PW1/7 to Ex.PW1/9. The deceased paid an amount of Rs. 49,200/- by way of installments as on the date of the accident. This fact is evident from loan transaction Ex.PW1/17 and certificate issued by Karan Motors, Jammu Ex.PW1/16.
51. The petitioner No. 1 (PW-1) stated that the petitioner No. 4 / Dilpreet Kour is studying in 3 rd standard and the petitioner No. 3 / Prabhjot Singh is studying in 7 th standard in St. Peter's Higher Secondary School, Jammu. Tuition fees certificate in respect of the petitioner No. 4 / Dilpreet Kour and the petitioner No. 3 / Prabhjot Singh for academic session 2016-17 are Ex.PW1/18 and Ex.PW1/20 and for period from April, 2017 to September, 2018 are Ex.PW1/19 and Ex.PW1/21.
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52. It is therefore, evident that an amount of Rs. 12,470/- was paid towards annual school fees of each the petitioner No. 3 / Prabhjot Singh and the petitioner No. 4 / Dilpreet Kour for the academic session 2016-17. An amount of Rs. 14,000/- was spent as transportation charges, as evidenced by Ex.PW1/22, @ Rs. 600/- per month for each of them.
53. It is correct that the petitioners have not led any evidence to prove the income of the deceased. However, the income of the deceased can be ascertained from the expenses of the deceased. In The New India Assurance Company Ltd. versus Ashrafi Devi & Ors., MAC APP. 1042/2012 decided on 30.11.2017, the deceased, age 42 years, was earning his livelihood from the transport business. The insurer contended that loss of dependency was wrongly calculated on the income of Rs. 15,000/-. Hon'ble High Court of Delhi observed, as under:
"Having heard the counsel for the insurer and having gone through the record, this Court finds no substance in the questions raised on the finding of income of the deceased. The deceased, it was proved, was owner of a truck and earning his livelihood from transport business. The evidence clearly shows that the was paying equated monthly installments to repay the loan taken for purchase of the said vehicle. In these circumstances, the finding on the issue of income is not disturbed."
(emphasis supplied)
54. In The New India Assurance Company Ltd. versus Ragini Chaudhary & Ors, MAC APP. 780/2012 decided on 23.11.2017, the insurer assailed the calculation of loss of dependency on the ground that the Tribunal error in accepting the word of the claimant about the income of the deceased being in the sum of Rs. 22,000/- per month.
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55. Hon'ble High Court of Delhi observed, as under:
".....The evidence of widow also proved that the deceased was leading a life with all modern amenities including a motor car at his disposal, having arranged the education of his child in a reputed school of Ghaziabad. He was maintaining bank accounts and also using credit cards for day-to-day expenses. The details of expenditure narrated by PW-1 itself justify the view taken by the Tribunal in accepting the word of PW-1 about the income being Rs. 22,000/- per month....."
56. In The Oriental Insurance Co. Ltd. versus Kavita Nagar & Ors., MAC APP. 312/2014 decided on 11.02.2016, the claimants pleaded that the deceased was working as site supervisor with a company at salary of Rs. 15,000/- per month. The Tribunal taken note of the fact that no documentary evidence was submitted. The Tribunal, on the basis of proof of expenses on the life style, in the nature of school fee receipt, considered that the deceased was in the receipt of income to the extent of Rs. 14,000/- per month. The insurance company contended that in the absence of formal document with regard to the income, the Tribunal should have adopted the minimum wages as notional income. Hon'ble High Court of Delhi held as under:
"This Court does not agree with these submissions. The minimum wages cannot become the benchmark in every case where formal proof of income is not shown. The expenditure incurred by the deceased on his family is also an index of the income that he would be earning from whatever avocation he was engaged in....."
(emphasis supplied) DAR No.: 201/2017 Paramjeet Kour & Ors. vs Sunil Kumar & Anr. 19 of 25
57. In Royal Sundaram Alliance Insurance Co. Ltd. versus Sanjida Begum & Ors, MAC APP. 462/2010 decided on 15.01.2016, the insurance company questioned the award on the ground that the income of the deceased was wrongly assessed as Rs. 12,500/- per month and that in absence of formal or strict proof about level of income. It contended that the Tribunal should have computed compensation on the basis of the minimum wages which, during the relevant period, were @ Rs. 4,377/- per month for skilled worker. Hon'ble High Court of Delhi held as under:
"Whilst it is true that the claimants failed to come up with any formal proof about the actual income, I agree with the submissions of the learned counsel appearing on their behalf that there cannot be a thumb rule that in all cases where strict proof of income is not forthcoming, the Tribunal or the Court will be left with no option but to go by the minimum wages prevailing at the relevant point of time. The facts and circumstances brought out would have to be seen in entirely. It has been proved on record that the family of the deceased included the widow and six minor children, besides four daughters already married and settled in their respective matrimonial homes. The evidence also clearly showed that the deceased was concerned about the proper settlement of his children in appropriate avocations with which objective he had arranged for their proper education in various institutes. Thus, he is shown to have been investing in their education by arranging for payments of the requisite fee to be paid. The expenses incurred towards such pursuits by the deceased also reflect that the earnings that would have been coming his way as a self employed dye maker could not possibly be so low as at the level of minimum wages."
58. Therefore, it is evident that the income of the deceased can be inferred from the expenses, inter alia, incurred by him on his avocation and education of his children.
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59. The annual expenses of the deceased, were as under:
Sl. No Head of expenditure Amount
1 Salary paid to PW2 Mohan Lal Rs. 42,000/
2 Insurance premium of the truck Rs. 38,801/
3 Installments @ Rs. 3,750/ per month Rs. 45,000/
4 Annual school fees of Dilpreet Kour Rs. 12,470/
5 Annual school fees of Prabhjot Singh Rs. 12,470/
6 Transportation charges of Dilpreet Kour & Prabhjot Singh Rs. 14,000/
Total Rs. 1,64,741/
60. Having computed annual expenses of the deceased, his monthly expenses would be around Rs. 14,000/- per month. Besides this, he was maintaining his family as well as incurring expenses for keeping his truck in working condition. This fact cannot be brushed aside that the deceased was the owner of the truck which he used to drive for earning his livelihood. The income of the deceased can be safely assumed at Rs. 20,000/- per month.
Deduction for personal and living expenses:
61. The deceased was survived by his wife, two minor children and mother. Ld. Counsel for the respondent No. 2 / insurer submitted that the petitioner No. 2 / mother of the deceased expired on 03.08.2017 and therefore, she cannot be considered in calculating loss of dependency.
62. The deceased died in road accident on 06.01.2017. He was survived by his wife, two minor children and mother. The petitioner No. 2 / mother of the deceased expired on 03.08.2017 after filing of the petition on 23.02.2017.
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63. The right to claim loss of dependency had crystallized on the date cause of action arose, which cannot be defeated by the subsequent event of death, such loss now being loss to the estate. (see: State of Uttar Pradesh & Ors. versus Asha Shah & Ors, MAC APP. 90.2012 decided on 09.11.2017)
64. The right to receive compensation had crystallized and vested on the date of cause of action arose. The said right cannot be defeated by subsequent death in a fatal accident claim case. (see: Bajaj Allianz General Insurance Company Ltd. versus Smt. Kela & Ors., MAC APP. 1135/2011 decided on 08.11.2017).
65. The deceased was survived by four dependents and therefore, 1/4th of his income can only be deducted towards personal and living expenses of the deceased. Application of multiplier:
66. The petitioner No. 1 has relied on driving license Ex.PW1/15 of the deceased. In the said driving license, the date of birth of the deceased is shown as 04.08.1966. In aadhaar card Ex.PW1/2, the date of birth of the deceased is shown as 04.08.1966.
67. The deceased died on 06.01.2017. He was about 50 years and 5 months. In view of dispensation in Oriental Insurance Co. Ltd. versus Rekha Vashisht & Ors., MAC APP. 636/2009 decided on 18.02.2016, multiplier of 13 as applicable to age group 46-50 years, being the nearest age, would apply. Future prospects:
68. The deceased was self-employed. He was above 50 years.
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69. In view of dispensation in National Insurance Co. Ltd. versus Pranay Sethi & Ors., Special Leave Petition (Civil) No. 25590 of 2014 decided on 31.10.2017, there shall be 10% addition of income.
Loss of dependency:
70. Applying the multiplier of 13 after deducting 1/4th from the notional income of the deceased, loss of dependency is computed as (20,000 x 110 / 100 x 3 / 4 x 12 x 13) = Rs. 25,74,000/-.
Non-pecuniary (general) damages:
71. In view of Pranay Sethi (supra), loss of estate, loss of consortium and funeral expenses in the sum of Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively added.
AWARD
72. The respondent No 2 / insurer is directed to pay compensation of Rs. 25,94,000/- (after adjusting interim award of Rs. 50,000/-) alongwith interest @ 9% p.a. from the date of filing of DAR (23.02.2017) till the date of award. In case, the respondent No. 2 / insurer fails to make payment within 30 days, it would be liable to pay the award amount alongwith interest @ 9% p.a. from the date of filing of DAR till realization. (Ref: Oriental Insurance Co. Ltd. vs Sangeeta Devi, MAC APP 165/2011 decided on 22.02.2016).
Apportionment of the award:
73. The petitioner No. 1 / Smt. Paramjeet Kour shall be entitled to 60% of the award amount with interest. Each of the petitioner No. 3 / Prabhjot Singh and petitioner No. 4 / Dilpreet Kour shall be entitled to 20% of the award amount with interest.
DAR No.: 201/2017 Paramjeet Kour & Ors. vs Sunil Kumar & Anr. 23 of 25 Final directions:
74. Following direction dated 15.12.2017 in Sobat Singh versus Ramesh Chandra Gupta & Anr., MAC APP. 422/2009, an amount of Rs. 56,400/- out of Rs. 15,56,400/-, will be released into the savings bank account of the petitioner No. 1 / Smt. Paramjeet Kour and balance amount of Rs. 15,00,000/- alongwith accumulated interest will be secured in the following manner:
Sl. No. Amount of FDR Period of FDR
1. Rs. 1,50,000/ 6 months
2. Rs. 1,50,000/ 1 year
3. Rs. 1,50,000/ 18 months
4. Rs. 1,50,000/ 24 months
5. Rs. 1,50,000/ 30 months
6. Rs. 1,50,000/ 36 months
7. Rs. 1,50,000/ 42 months
8. Rs. 1,50,000/ 48 months
9. Rs. 1,50,000/ 54 months
10. Rs. 1,50,000/ alongwith accrued interest 60 months
75. Amount of Rs. 5,18,800/- alongwith corresponding interest, awarded to each of the petitioner No. 3 / Prabhjot Singh and the petitioner No. 4 / Dilpreet Kour, will be secured in the form of FDR till they attain the age of majority.
76. Copy of Award be given to the petitioners and respondent No. 2 / insurer for compliance.
77. File be consigned to record room.
Announced in the open Court Sh. Sanjay Sharma Dated: 19th January, 2018 Presiding Officer MACT (East) Karkardooma Courts, Delhi DAR No.: 201/2017 Paramjeet Kour & Ors. vs Sunil Kumar & Anr. 24 of 25 DAR No. 201/17 19.01.2018 Present : Sh. Gurmit Singh Hans, Advocate for the petitioners.
Sh. Naresh Kumar, Advocate for R1 / driverowner. Ms. Shalini Upadhyay, Advocate for R2 / Insurance Co.
It is 4.45 p.m. Vide separate judgment, award is passed. To come up for compliance on 18.02.2018. The petitioners are directed to produce the original passbooks with the necessary endorsement as well as aadhaar card and PAN card before the Tribunal. File of the criminal case be sent back.
Sanjay Sharma PO MACT (East)/KKD Delhi/19.01.2018.
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