Delhi District Court
Kashmiri vs Jaikam & Others on 20 May, 2015
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.519/14
Date of Institution: 20.09.2014
IN THE MATTER OF:
1. Kashmiri
W/o Late Shri Katar Singh @ Kartar Singh
2. Mohit
S/o Late Shri Katar Singh @ Kartar Singh
3. Rohit
S/o Late Shri Katar Singh @ Kartar Singh
4. Komal
D/o Late Shri Katar Singh @ Kartar Singh
(Minor represented through
Mother and Natural Guardian
Kashmiri - petitioner No.1)
5. Jai Kanwar
Father of Late Shri Katar Singh @ Kartar Singh
6. Dhan Kour
W/o Shri Jai Kanwar
All R/o:
H.No.2/A, VillageSarai
TehsilNuh
District Mewat
Haryana. ...Petitioners
Suit No. 519/14 Page no. 1 of 35
Kashmiri & others Vs. Jaikam & others
Versus
1. Shri Jaikam
S/o Shri Soodan
R/o Hingota
Tehsil Deeg Deeg
Bharatpur
Rajasthan.
2. Shri Arun Bansal
R/o H.No.3, Krishna Colony
Gurgaon
Haryana.
3. SBI General Insurance Co. Limited
7B, Near Rajendra Place Metro Station
Opposite Siddhartha Hotel
Pusa Road, Bank Street
Delhi - 110005. ...Respondents
Final Arguments heard : 29.04.2015 Award reserved for : 20.05.2015 Date of Award : 20.05.2015 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
Suit No. 519/14 Page no. 2 of 35 Kashmiri & others Vs. Jaikam & others
2. It is the case of the petitioners that on 25.07.2014 at about 05:00 hrs, the deceased Shri Katar Singh @ Kartar Singh along with conductor Shri Jag Jeevan was going on a vehicle (Tata 407) bearing No.HR55Q6665 and the deceased Shri Katar Singh @ Kartar Singh was driving the vehicle. When they reached the main road Dhaula Kuan to Karol Bagh, in front of Metro pillar No. 43, suddenly the offending vehicle (container) bearing No.HR55R0124, which was being driven by the respondent No.1 at a very high speed and in a negligent manner, without caring for safety and traffic rules hit the Tata 407 with great force. As a result the deceased Shri Katar Singh @ Kartar Singh died on the spot and he was taken to Trauma Centre, (AIIMS), New Delhi, by the CAT Ambulance. It is averred that the principle of res ipsa loquitur applies in the case. It is stated that in respect of the accident FIR No.440/2014 under Sections 279/304A IPC was registered at PS Delhi Cantt.
3. It is stated that the deceased was 45 years old and working as a milk man and he was earning Rs.2,50,000/ per month. It is averred that the petitioners have lost their husband and father and son in the accident and are suffering from mental as well as physical pain and agony. It is averred that the respondent No.1 being the driver and the respondent No.2 being the owner are liable to pay compensation as also the respondent No.3 being the insurance company of the offending vehicle. It is averred that the family members suffered from mental pain and agony and from economic losses and the whole life of the petitioners had been ruined due to the accident. It is Suit No. 519/14 Page no. 3 of 35 Kashmiri & others Vs. Jaikam & others prayed that an amount of Rs.3,50,00,000/ be awarded as compensation in favour of the petitioners and against the respondents.
4. Written statement on behalf of the respondent No.1 was filed taking the preliminary objections that the vehicle was insured vide policy No. 00000000001229880 valid upto 3.9.2014 and if there was any unfortunate happening, all risks and liabilities were to be fulfilled by the insurance company and the respondent No.1 was not liable to pay any compensation. It is averred that the accident did not take place due to the negligence or rash driving of the respondent No.1 and he was driving the vehicle carefully at the prescribed speed limit on 25.7.2014 but the vehicle No.HR55Q6665 which was driven by the deceased and was moving ahead of the vehicle of the respondent No.1 suddenly applied the brakes and in order to save the person driving the vehicle collided with the respondent No.1. It is contended that there was no negligence or rashness on the part of the respondent No.1. It is averred that the nature of the accident itself reflects that if the respondent No.1 had not applied the brakes in order to save the persons in the vehicle of the deceased, it might have led to a disastrous accident and loss of lives would be much more. It is alleged that the deceased was at high speed so he could not control his vehicle, as such the deceased himself was responsible for the accident and not the respondent No.1. The averments made in the claim petition were denied. It is alleged that the amount claimed by the petitioners is exorbitant. It is denied that the respondent No.1 was driving the vehicle at very Suit No. 519/14 Page no. 4 of 35 Kashmiri & others Vs. Jaikam & others high speed and in a negligent manner or without following safety or traffic rules. It is averred that the respondent No.1 has a valid license and sufficient experience to drive heavy vehicles. It is contended that the deceased was not obeying the traffic rules and if he had obeyed the traffic rules and had been cautious about precious life, the accident could have been thwarted. Separate written statement was filed on behalf of the respondent No.2 making the same averments as made in the written statement of the respondent No.1.
5. Reasoned decision/ reply to DAR was filed on behalf of the respondent No.3 stating that the vehicle No.HR55R0124 was insured with the respondent No.3 at the relevant time i.e. on 25.7.2014 vide policy No.00000000001229880 for the period 4.9.2013 to 3.9.2014 in the name of Shri Arun Bansal. An offer of Rs.35,000/ was made in addition to medical expenses.
6. Initially the claim petition was filed on 20.9.2014 and thereafter the Detailed Accident Report was filed by the IO on 28.10.2014. From the pleadings of the parties, the following issues were framed vide order dated 21.11.2014:
1. Whether the deceased Katar Singh sustained fatal injuries in the accident which occurred on 25.07.2014 at about 5 p.m at Metro Pillar no.43, Riz Road, way to Karol Bagh, Delhi, caused by rash and negligent driving of a vehicle bearing no.HR55R0124, being driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP Suit No. 519/14 Page no. 5 of 35 Kashmiri & others Vs. Jaikam & others
2. Whether the LRs of the deceased are entitled for compensation? If so, to what amount and from whom?
3. Relief.
7. On behalf of the petitioners, the petitioner No.1 Smt. Kashmiri appeared in the witness box as PW1 and led her evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. She stated that at the time of accident the deceased was a milk supplier in BTW India Pvt. Ltd. and he was earning Rs.2,50,000/ per month and had a bright future ahead. He used to contribute his entire earnings to his family members and the petitioners had full love and affection for the deceased. She stated that the accident had been caused by rash and negligent driving by the driver/ respondent No.1 who was driving the offending vehicle with high speed in rash and negligent manner without caring for safety of the others and the respondents were jointly and severally liable to pay the compensation to the petitioners. She stated that she had incurred Rs.1,25,000/ on transportation and last rites of the deceased. Copy of Aadhar card of PW1 is Ex.PW1/1, copy of ration card is Ex.PW1/2, copy of Aadhar card of Mohit is Ex.PW1/3, copy of Aadhar card of Rohit is Ex.PW1/4, copy of Aadhar card of Komal is Ex.PW1/5, copy of voter ID card of Shri Jai Kanwar is Ex.PW1/6, copy of voter ID card of Dhan Kour is Ex.PW1/7, copy of driving license of Late Shri Katar Singh @ Kartar Singh is Mark PW1/8, copy of Bank Pass Book of Late Shri Katar Singh @ Kartar Singh is Ex.PW1/9 and copy of BTW India (P) Limited Bill is Ex.PW1/10.
Suit No. 519/14 Page no. 6 of 35 Kashmiri & others Vs. Jaikam & others
8. Shri Suresh Kumar Aggarwal, owner/ proprietor of Bikaner Corner Wala was produced in the witness box as PW2 and he deposed that the deceased Shri Katar Singh @ Kartar Singh was supplying milk in his shop since 2000. He used to give him approximately 450 kg per day. They used to give him Rs.3.50 to Rs.4 lacs per month against the milk. He stated that he used to give him the full payment in cash only. License issued by MCD is Ex.PW2/1, copy of certificate of registration of an eating house by Delhi Police is Ex.PW2/2, copy of sales tax registration certificate is Ex.PW2/3, copy of food safety license is Ex.PW2/4, copy of PAN card is Ex.PW2/5 and copy of milk record register of different vendors is Ex.PW2/6 (colly).
9. Shri Bhram Prakash, Transport Manager at Bittu Tikki Wala (BTW), A14, Lawrence Road, Industrial Area, Delhi 35 was produced in the witness box as PW3 and he deposed that the deceased was supplying milk for the last 45 years and he proved the statement of payment w.e.f 01.04.2014 to 16.02.2015 which is Ex.PW3/1.
10. Shri Arun Gupta, Accountant, BTW, A14, Lawrence Road, Industrial Area, Delhi35 was produced in the witness box as PW4 and he proved the ledger account in respect of the deceased Kartar Singh which is Ex.PW4/A which shows the payments made to the deceased. Copy of certificate of incorporation and form of DVAT are MarkA and MarkB (colly) respectively. PE was closed on 09.04.2015. It was stated by the learned Suit No. 519/14 Page no. 7 of 35 Kashmiri & others Vs. Jaikam & others counsels for the respondents that no RE was to be led and RE was closed on 9.4.2015.
11. I have heard the Learned Counsel for the petitioners and the Learned Counsel for the respondent No.3 and perused the record.
12. My findings on the specific issues are as under:
Issue No. 1
13. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that the deceased sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants 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 Company 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 FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet Suit No. 519/14 Page no. 8 of 35 Kashmiri & others Vs. Jaikam & others under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not 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 part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
14. The case of the petitioners is that on 25.07.2014 at about 05:00 hrs, the deceased Shri Katar Singh @ Kartar Singh along with conductor Shri Jag Jeevan was going on a vehicle (Tata 407) bearing No.HR55Q6665 and the Suit No. 519/14 Page no. 9 of 35 Kashmiri & others Vs. Jaikam & others deceased Shri Katar Singh @ Kartar Singh was driving the vehicle. When they reached the main road Dhaula Kuan to Karol Bagh, in front of Metro pillar No. 43, suddenly the offending vehicle (container) bearing No.HR55R0124, which was being driven by the respondent No.1 at a very high speed and in a negligent manner, without caring for safety and traffic rules hit the Tata 407 with great force. It was stated that in respect of the accident FIR No.440/2014 under Sections 279/304A IPC was registered at PS Delhi Cantt. In paras 2 and 6 of her affidavit Ex.PW1/A the petitioner No.1 had reiterated the mode and manner of the accident as stated in the claim petition. She stated that the accident had been caused by rash and negligent driving by the driver/ respondent No.1 who was driving the offending vehicle with high speed in rash and negligent manner without caring for safety of the others.
15. The IO had filed Detailed Accident Report containing the criminal record consisting of copy of charge sheet; copy of tehrir, copy of FIR; copy of site plan; copy of DD, copy of arrest memo, copy of seizure memos; copy of mechanical inspection report of the offending vehicle and of the vehicle of the deceased, copy of verification report of the RC of the offending vehicle with the copy of the RC, copy of the insurance policy of the offending vehicle and its verification report and verification report of DL of the respondent No.1 with a copy of the DL, copy of permit of the offending vehicle, copy of RC of the vehicle of the deceased, certificate of fitness, copy of permit, copy of insurance policy and copy of DL of the deceased, copies of statements under Suit No. 519/14 Page no. 10 of 35 Kashmiri & others Vs. Jaikam & others Section 161 Cr.P.C., copy of notice under Section 133 MV Act, copy of disclosure statement of the respondent No.1, copy of MLC and post mortem report and copy of order on application for release of the offending vehicle and the vehicle in which the deceased was going on superdari along with copies of superdarinamas, copies of photographs, copies of documents in respect of the deceased and in respect of the petitioners. As per the FIR No.440/14 under sections 279/304A IPC, PS Delhi Cantt. the case was registered on the basis of complaint of SI Vijay Pal Singh (on DD). As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/337/304A IPC.
16. The respondent No.1 had filed the written statement averring that the accident did not take place due to the negligence or rash driving of the respondent No.1 and he was driving the vehicle carefully at the prescribed speed limit on 25.7.2014 but the vehicle No.HR55Q6665 which was driven by the deceased and was moving ahead of the vehicle of the respondent No.1 suddenly applied the brakes and in order to save the person driving the vehicle collided with the respondent No.1. It was contended that there was no negligence or rashness on the part of the respondent No.1. It was averred that the nature of the accident itself reflects that if the respondent No.1 had not applied the brakes in order to save the persons in the vehicle of the deceased, it might have led to a disastrous accident and loss of lives would be much more. It was alleged that the deceased was at high speed so he could not Suit No. 519/14 Page no. 11 of 35 Kashmiri & others Vs. Jaikam & others control his vehicle, as such the deceased himself was responsible for the accident and not the respondent No.1. It was denied that the respondent No.1 was driving the vehicle at very high speed and in a negligent manner or without following safety or traffic rules. It was contended that the deceased was not obeying the traffic rules and if he had obeyed the traffic rules and had been cautious about precious life, the accident could have been thwarted. Separate written statement was filed on behalf of the respondent No.2 making the same averments as made in the written statement of the respondent No.1.
17. During crossexamination by the learned counsel for the respondent No. 3 PW1 admitted that the deceased Late Shri Katar Singh was her husband. She admitted that she was not the eye witness to the accident. She admitted that she was not aware how the accident took place. She admitted that she could not say that the vehicle bearing registration number HR 55R 0124 was negligent or not or the said accident had been caused by the said vehicle. She admitted that she had only marked the DL of her husband. Thus PW1 admitted that she was not the eye witness to the accident and she was not aware how the accident took place. She admitted that she had only marked the DL of her husband but it is seen that a copy of the DL of the deceased was also placed on record with the DAR. It would be argued on behalf of the respondents that PW1 was not an eye witness to the accident and even no eye witness has been examined to prove the negligence of the respondent No. 1 and as such the petitioners have failed to establish the negligence of the Suit No. 519/14 Page no. 12 of 35 Kashmiri & others Vs. Jaikam & others respondent No.1. However the respondent No.1 who is the driver and the respondent No.2 who is the owner of the offending vehicle have not adduced any evidence to dispute the version put forth by the petitioners or in the criminal record.
18. The mechanical inspection report of the Tata 407 which the deceased was driving shows that the engine and radiator were fully damaged, the driver cabin was fully damaged, both windows were freshly damaged as also the engine bonnet, the front bumper and jali and number plate were freshly damaged, both headlights were broken and the indicator was freshly broken, steering, brake and clutch were freshly damaged and all glasses were broken. Thus there was extensive damage to the vehicle which the deceased was driving and most damage was to the front portion. The mechanical inspection report of the offending vehicle shows that the left side back body and bumper were freshly damaged and the left side back light and indicator were freshly broken though the right side light and indicator were OK. This shows that the vehicle of the deceased had hit the offending vehicle from behind. In fact the statement of the conductor Jagjeevan is on record wherein he had stated that when they reached near Metro Pillar No.43, one truck bearing No.HR55R0124 was standing in the middle of the road and to avoid the same the deceased cut his vehicle towards the left side but still the vehicle of the deceased hit against the back side of the offending vehicle. Clearly the vehicle of the deceased would have been at speed for such extensive damage to have been caused to Suit No. 519/14 Page no. 13 of 35 Kashmiri & others Vs. Jaikam & others it and the deceased had not maintained proper distance due to which the deceased was not able to control his vehicle and hit against the offending vehicle. The criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under Sections 279/337/304A IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondents have not led any evidence to prove any other version of the accident. There is nothing to disprove the involvement of vehicle No.HR55R0124. In view of the testimony of PW1 and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima facie proved. At the same time the deceased had also failed to exercise due care and caution and thus contributed to the happening of the accident and in the facts and circumstances of the case, the negligence of the deceased is apportioned as 25% and of the respondent No.1 as 75%.
19. It was stated that as a result of the accident the deceased Shri Katar Singh @ Kartar Singh died on the spot and he was taken to Trauma Centre, (AIIMS), New Delhi, by the CAT Ambulance. The post mortem report is also on record as per which the death was due to shock and hemmorhage consequent upon injuries to pelvis and lower limb resulting from a blunt force/ surface impact and the injuries were ante mortem in nature and could be possible in a Suit No. 519/14 Page no. 14 of 35 Kashmiri & others Vs. Jaikam & others road traffic accident. Thus it stands established that the deceased had sustained injuries in the alleged accident due to which he died. This issue is decided accordingly.
Issue No.2
20. In T.O. Anthony v. Karvarnan & Ors., (2008) 3 SCC 748, it was held as under:
"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence."
Suit No. 519/14 Page no. 15 of 35 Kashmiri & others Vs. Jaikam & others In the instant case as well though the deceased is found to have contributed to the negligence the claim for compensation by the petitioners cannot be defeated merely by reason of the negligence on part of the deceased but the compensation recoverable by the petitioners would stand reduced in proportion to the contributory negligence of the deceased.
21. The petitioners are the legal representatives of the deceased being the wife, children and parents of the deceased. PW1 was crossexamined on the point of dependency and during crossexamination by the learned counsel for the respondent No.3 PW1 stated that she had three children. She did not remember the age of her children. Being the wife, the petitioner No.1 would be regarded as dependent on the deceased. As per the documents on record the petitioner No.2 Mohit would be more than 18 years old on the date of the accident as also the petitioner No.3 Rohit. Being major they would not be regarded as dependent on the deceased. Being a minor daughter, the petitioner No.4 Komal would be regarded as dependent on the deceased. The petitioner No.5 is the father of the deceased and being the father he would not be regarded as dependent on the deceased as per the well settled law. However being the mother the petitioner No.6 Dhan Kour would be regarded as dependent on the deceased. As such the petitioners No.1, 4 and 6 would be regarded as dependent on the deceased.
Suit No. 519/14 Page no. 16 of 35 Kashmiri & others Vs. Jaikam & others
22. The petitioners have claimed loss of dependency on the basis that the deceased was 45 years old and working as a milk man and he was earning Rs.2,50,000/ per month. It was averred that the petitioners had lost their husband and father and son in the accident and were suffering from mental as well as physical pain and agony. It was averred that the family members of the deceased suffered from mental pain and agony and from economic losses and the whole life of the petitioners had been ruined due to the accident. PW1 in paras 3 and 4 of her affidavit Ex.PW1/A had deposed to that effect. She stated that at the time of accident the deceased was a milk supplier in BTW India Pvt. Ltd. and he was earning Rs.2,50,000/ per month and had a bright future ahead. He used to contribute his entire earnings to his family members and the petitioners had full love and affection for the deceased. Copy of Bank Pass Book of Late Shri Katar Singh @ Kartar Singh is Ex.PW1/9 and copy of BTW India (P) Limited Bill is Ex.PW1/10. During crossexamination by the learned counsel for the insurance company PW1 admitted that her husband was working in BTW India Pvt. Ltd. She admitted that she had not annexed the ITR of the deceased. She admitted that she had not annexed any pay slip related to the salary of her husband Late Shri Katar Singh. She admitted that she did not have any salary slip of her deceased husband. She admitted that she had not placed on record any document stating that her husband was working in BTW India Pvt. Ltd. She admitted that she did not know what transactions her husband used to do as stated in Ex.PW1/9. She admitted that she did not know the contents of Ex.PW1/10. She admitted that she had Suit No. 519/14 Page no. 17 of 35 Kashmiri & others Vs. Jaikam & others not annexed any document to substantiate the salary of her deceased husband. Thus PW1 admitted that her husband was working in BTW India Pvt. Ltd though she had not annexed any pay slip related to the salary of her husband Late Shri Katar Singh and she even did not have any salary slip of her deceased husband. She further admitted that she had not placed on record any document stating that her husband was working in BTW India Pvt. Ltd. And she did not know what transactions her husband used to do as stated in Ex.PW1/9. She also admitted that she had not annexed any document to substantiate the salary of her deceased husband. As such there is no document to show that the deceased was working with BTW India Ltd and even no salary slip has been placed on record and even the ITR of the deceased was not placed on record.
23. The petitioners in support of their case had examined PW2 who deposed that the deceased Shri Katar Singh @ Kartar Singh was supplying milk in his shop since 2000. He used to give him approximately 450 kg per day. They used to give him Rs.3.50 to Rs.4 lacs per month against the milk. He stated that he used to give him the full payment in cash only. License issued by MCD is Ex.PW2/1, copy of certificate of registration of an eating house by Delhi Police is Ex.PW2/2, copy of sales tax registration certificate is Ex.PW2/3, copy of food safety license is Ex.PW2/4, copy of PAN card is Ex.PW2/5 and copy of milk record register of different vendors is Ex.PW2/6 (colly). During crossexamination by the learned counsel for the insurance Suit No. 519/14 Page no. 18 of 35 Kashmiri & others Vs. Jaikam & others company PW2 stated that he was not the relative of Shri Katar Singh. He stated that he knew the deceased Shri Katar Singh as he used to supply milk in their shop. He admitted that he had not placed on record any document showing the payments that he used to make to Katar Singh. He admitted that he had not placed on record any document showing placement of order with Mr. Katar Singh. He stated that he used to call Katar Singh and his brother and he did not remember the name. He stated that there were no rules regarding maintenance of books of accounts. He stated that he is an ITR payee. He admitted that they prepared P&L account and the balance sheet. He admitted that he had placed on record the copy of the P&L account showing the payments. He stated that the deceased used to earn Rs.3 lacs a month. However the same was only the information he used to tell PW2. He did not have any documentary proof of the same. Thus PW2 had stated about deceased Shri Katar Singh @ Kartar Singh supplying milk in his shop since 2000 and that they used to give him Rs.3.50 to Rs.4 lacs per month against the milk and that he used to give him the full payment in cash only. PW2 stated that he knew the deceased Shri Katar Singh as he used to supply milk in their shop. While PW2 had placed on record copy of milk record register of different vendors, he admitted that he had not placed on record any document showing the payments that he used to make to Katar Singh or to show placement of order with Mr. Katar Singh and as such there is nothing to show how much amount was being paid to the deceased. He admitted that he had placed on record the copy of the P&L account showing the payments though Suit No. 519/14 Page no. 19 of 35 Kashmiri & others Vs. Jaikam & others no such copy is there on record. He stated that the deceased used to earn Rs. 3 lacs a month but that was only the information he used to tell PW2 and he did not have any documentary proof of the same. PW2 had placed on record the copy of milk record register of different vendors but the same is not very clear on the quantity of milk that was supplied and it is seen that the quantity varied from day to day and there is nothing to show the payment made to the deceased.
24. The petitioners had further produced PW3 in the witness box and he deposed that the deceased was supplying milk for the last 45 years and he proved the statement of payment w.e.f 01.04.2014 to 16.02.2015 which is Ex.PW3/1. Thus it is seen that PW3 had stated that the deceased was supplying milk and it is not the case that the deceased was working with BTW and getting a salary from there. During crossexamination by the learned counsel for the insurance company PW3 stated that he works in BTW. He stated that he did not have any authority letter to give the evidence on behalf of BTW volunteered he had brought the summons. He had not brought his ID card. He admitted that he had not annexed any affidavit under Section 65B of the Indian Evidence Act in support of the computerized copy which is Ex.PW3/1. He stated that he worked in the transport department. He admitted that he did not look into the payment made to the deceased rather it was looked into by the accounts department. He admitted that he had no personal knowledge about what payment was made to Kartar Singh and in lieu of what Suit No. 519/14 Page no. 20 of 35 Kashmiri & others Vs. Jaikam & others the payment was made. He admitted that he could not tell whose account number was mentioned in Ex.PW3/1. He admitted that the statement was as per the records. He admitted that he did not maintain the record. He stated that it was not possible on seeing Ex.PW3/1 as to what was the income of Kartar Singh. He admitted that the address mentioned in Ex.PW3/1 was the address which was provided by Kartar Singh. He admitted that he had no knowledge about how much TDS was deducted by BTW towards payment to anyone. He denied the suggestion that he was supporting the LR s of the deceased. He had no knowledge about what ITR the deceased used to file and for what amount. He stated that the deceased used to supply milk to BTW. Thus PW3 admitted that he did not look into the payment made to the deceased rather it was looked into by the accounts department and he had no personal knowledge about what payment was made to Kartar Singh and in lieu of what the payment was made. He also admitted that he did not maintain the record and that it was not possible on seeing Ex.PW3/1 as to what was the income of Kartar Singh. He even had no knowledge about how much TDS was deducted by BTW towards payment to anyone and he had no knowledge about what ITR the deceased used to file and for what amount. As such it is seen that PW3 did not maintain the record produced by him and had no personal knowledge about the payment made to the deceased.
25. The petitioners had also produced PW4 in the witness box who proved the ledger account in respect of the deceased Kartar Singh which is Suit No. 519/14 Page no. 21 of 35 Kashmiri & others Vs. Jaikam & others Ex.PW4/A which shows the payments made to the deceased. Copy of certificate of incorporation and form of DVAT are MarkA and MarkB (colly) respectively. During crossexamination by the learned counsel for the insurance company PW4 admitted that he had not placed on record any affidavit or certificate under section 65B Evidence Act in support of Ex.PW4/A which was a computerized copy. He stated that he was exclusively working as CA for BTW. He could not tell the profit of the deceased on the basis of ledger which he had produced. He could not say if Kartar Singh was supplying milk from his own dairy or if he was working for someone else. He stated that they used to give cheque in the name of Kartar Singh. He stated that BTW was purchasing milk worth Rs.1 crore from Kartar Singh in a year approximately. He had never visited the dairy of Kartar Singh. He could not say whether Kartar Singh used to procure milk from other suppliers as that was the job of the Operations Department. He stated that Kartar Singh was not their employee. He stated that Kartar Singh was running a proprietorship firm. He did not have any document to show the same. He could not tell about the standard of milk that was procured. He stated that they were also getting milk from twothree other vendors which were also proprietorship firms. Thus PW4 was extensively crossexamined on behalf of the insurance company and he could not tell the profit of the deceased on the basis of ledger which he had produced. He even could not say if Kartar Singh was supplying milk from his own dairy or if he was working for someone else or whether Kartar Singh used to procure milk from Suit No. 519/14 Page no. 22 of 35 Kashmiri & others Vs. Jaikam & others other suppliers. He stated that BTW was purchasing milk worth Rs.1 crore from Kartar Singh in a year approximately. He stated that Kartar Singh was not their employee. It is significant that PW4 stated that Kartar Singh was running a proprietorship firm but the petitioners themselves had not stated that Kartar Singh was running a proprietorship firm nor any documents or particulars in respect of the same were produced and PW4 also stated that he did not have any document to show the same.
26. It is thus seen that PW1 had stated about the deceased working in BTW India Pvt. Ltd though no pay slip was produced by her. However from the evidence of PW3 and PW4 it is clear that the deceased was not working with BTW India and PW4 had categorically stated that the deceased was not their employee. Rather it has come on record that the deceased used to supply milk and even PW2 had deposed about the deceased supplying milk to Bikaner Corner Wala, Rani Bagh. PW2 had stated that they used to give him Rs.3.50 to 4 lacs per month against the milk but he had not placed on record any document showing the payment that he used to make to Kartar Singh. Apart from that the amount stated by him could not be regarded as the income of the deceased as he would be incurring costs also. While it has come on record that the deceased was doing the work of supplying milk, there is nothing to show that he had his own dairy or whether he used to procure milk from other suppliers and PW4 had stated that he had never visited the dairy of the deceased and PW4 could not say whether the Suit No. 519/14 Page no. 23 of 35 Kashmiri & others Vs. Jaikam & others deceased used to procure the milk from other suppliers. In fact PW4 had stated about the deceased running a proprietorship firm about which the petitioners themselves had not stated. The documents produced by PW3 and PW4 show the payments made to the deceased but the same cannot be regarded as the income of the deceased as he was incurring costs as well. It was submitted by the learned counsel for the petitioners that the deceased was in fact procuring milk from other suppliers and then supplying further. However no evidence has been led as to from whom the deceased used to procure milk and in what quantity and at what cost nor to show what was the profit earned by the deceased from supplying milk which alone can be regarded as the income of the deceased and not the payments that were received by him from those to whom he supplied the milk.
27. The learned counsel for the petitioners has then relied upon the statement of bank account of the deceased but it is seen that if deposits were received in the bank account of the deceased, the amounts were also withdrawn soon after and there was never any substantial balance in the account of the deceased. This would indicate that the deceased also had to make payments further to the persons from whom he procured the milk. In the instant case it was contended that the deceased was earning Rs. 2,50,000/ per month but no specific document to show the said income has been placed on record. Even no ITR has been filed and it was argued by the learned counsel for the petitioners that being agricultural income the Suit No. 519/14 Page no. 24 of 35 Kashmiri & others Vs. Jaikam & others deceased was not required to file income tax returns. However the deceased was doing the work of supplying milk and if he was earning the amount stated there would have been some document to show the same. Merely on the basis of the payments which were received by the deceased, it cannot be said that they constituted the income of the deceased. There is even nothing to show the educational qualifications of the deceased on record or to show that he had acquired any skill. However considering the nature of work that the deceased was doing and the documents which have come on record, it would also not be appropriate to assess the income of the deceased on the basis of minimum wages prevalent on the date of the accident. Considering the facts and circumstances of the case, the income of the deceased for the computation of loss of dependency is taken as Rs. 25,000/ p.m.
28. It is the case of the petitioners that the deceased was 45 years of age at the time of the accident and it was so stated in the claim petition. The post mortem report of the deceased shows his age to be 42 years. Copy of the DL of the deceased is on record as per which the date of birth of the deceased was 26.5.1975. As such he would have been more than 39 years old on the date of the accident i.e. 25.7.2014. As per the judgment of the Hon'ble Supreme Court in Sarla Verma and others v. Delhi Transport Corporation and others 2009 ACJ 1298 (SC) case the multiplier of 15 applies for calculating the loss of income where the age of the deceased is 36 to 40 Suit No. 519/14 Page no. 25 of 35 Kashmiri & others Vs. Jaikam & others years.
29. As observed above the dependents on the deceased are his wife, daughter and mother. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case as the number of dependents was 3 there would be 1/3rd deduction towards personal and living expenses of the deceased. As regards the future prospects in HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. MAC. APP.189/2014 decided on 12.1.2015 which has been further relied on in Shriram General Insurance Co. Ltd. v. Preeti & Ors. MAC. APP. 1145/2013 decided on 28.1.2015 and U.P. State Road Transport Corporation v. Shahida & Ors. MAC. APP. 325/2013 decided on 28.1.2015 it was held that the judgment in Reshma Kumari & Ors. v. Madan Mohan & Anr. (2013) 9 SCC 65 shall be taken as a binding precedent in which judgment the Hon'ble Supreme Court while approving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors. (supra) held as under: "38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], this Court has noted the earlier decisions in Susamma Thomas [Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335] , Sarla Dixit[(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in para 24 of the Report Suit No. 519/14 Page no. 26 of 35 Kashmiri & others Vs. Jaikam & others held as under: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], SCC p. 134) "24. ... In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary‟ should be read as actual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
39. The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 Suit No. 519/14 Page no. 27 of 35 Kashmiri & others Vs. Jaikam & others years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was selfemployed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases." There is nothing to show the future prospects of the deceased or even to show that he had a permanent job. As such the actual income at the time of death without any addition to income for future prospects would be taken and the petitioners would not be entitled to any addition of the income towards future prospects.
Accordingly the loss of dependency as per the monthly income i.e. Rs. 25,000/ is calculated as under :
Rs.25,000/ X 12 (annual) - Rs.1,00,000/ (i.e. 1/3rd towards personal expenses) = Rs.2,00,000/ X 15 (multiplier) = Rs.30,00,000/. As the negligence of the deceased has been apportioned as 25%, the petitioners would be entitled to 75% of Rs.30,00,000/ i.e. Rs.22,50,000/.
30. The petitioners are also entitled to compensation for loss of love and affection, loss of consortium, loss of estate and funeral expenses. PW1 had stated that she had spent Rs.1,00,000/ towards funeral expenses and other Suit No. 519/14 Page no. 28 of 35 Kashmiri & others Vs. Jaikam & others rituals and Rs.25,000/ towards transportation. During crossexamination by the learned counsel for the respondent No.3 PW1 admitted that she had not annexed any document to substantiate her averment towards spending Rs.
1,00,000/ on funeral expenses and Rs.25,000/ towards transportation. There is also nothing to show the same.
The total compensation is determined as under:
Loss of dependency : Rs.22,50,000/
Love and affection : Rs.1,00,000/
Loss of Consortium : Rs.1,00,000/
Loss of Estate : Rs.10,000/
Funeral expenses : Rs.25,000/
Total : Rs.24,85,000/
Thus, the total compensation would amount to Rs.24,85,000/. RELIEF
31. The petitioners are awarded a sum of Rs.24,85,000/ (Rs.Twenty Four Lacs Eighty Five Thousand only) along with interest @ 9% per annum from the date of filing of the claim petition till its realization including, interim award, if any already passed against the respondents and in favour of the petitioners.
Suit No. 519/14 Page no. 29 of 35 Kashmiri & others Vs. Jaikam & others The petitioners No.2, 3 and 5 Shri Mohit, Rohit and Shri Jai Kanwar would be entitled to 5% share each in the awarded amount; the petitioner No.4 Komal would be entitled to 15% share in the awarded amount, the petitioner No.6 Smt. Dhan Kour would be entitled to 20% share in the awarded amount and the petitioner No.1 i.e. Smt. Kashmiri would be entitled to 50% share in the awarded amount.
32. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgment the award amount is to be disbursed as follows:
a) The share of the petitioners No.2, 3, 5 and 6 be released to them by transferring it into their savings account in UCO Bank, Patiala House Court.
50% of the share of the petitioner no. 6 be kept in FDR for 2 years. The entire share of the petitioner No.4 be kept in FDR in UCO Bank, Patiala House Court till she attains majority and for 2 years thereafter. 20% of the share of the petitioner No.1 be released to her by transferring it into her savings account and the remaining amount out of her share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
Suit No. 519/14 Page no. 30 of 35 Kashmiri & others Vs. Jaikam & others
1. Fixed deposit in respect of 20% for a period of one year.
2. Fixed deposit in respect of 20% for a period of two years.
3. Fixed deposit in respect of 20% for a period of three years.
4. Fixed deposit in respect of 20% for a period of four years.
b)The respondent No.3 is directed to deposit the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Smt. Kashmiri, Mohit, Rohit, Komal, Jai Kanwar and Dhan Kour within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondent No.3 shall be liable to pay further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the savings account of the petitioner No.1.
Suit No. 519/14 Page no. 31 of 35 Kashmiri & others Vs. Jaikam & others f) The withdrawal from the aforesaid account shall be permitted to the
petitioner No.1 after due verification and the bank shall issue photo identity card to the petitioner No.1 to facilitate her identity.
g) No cheque book shall be issued to the petitioner No.1 without the permission of the court.
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioner No.1 along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
i) The original fixed deposit receipts shall be handed over to the petitioner No.1 on the expiry of the period of the fixed deposit receipts.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
k) On the request of the petitioners, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioners.
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l) The petitioners shall furnish all the relevant documents for opening of the saving bank account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
33. The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount.
APPORTIONMENT OF LIABILITY
34. The respondent No.1 is the driver, respondent No.2 is the owner of the offending vehicle and the respondent No.3 is the insurer in respect of the offending vehicle. Thus the respondents No.1, 2 and 3 are held jointly and severally liable. No evidence has been led on behalf of the respondent No.3 to show any violation of the terms and conditions of the policy and in fact the duly verified documents in respect of the offending vehicle were placed on record by the IO with the DAR. Respondent No.3 i.e. SBI General Insurance Suit No. 519/14 Page no. 33 of 35 Kashmiri & others Vs. Jaikam & others Co. Ltd. being the insurance company in its written statement had stated that the vehicle No.HR55R0124 was insured with the respondent No.3 at the relevant time i.e. on 25.7.2014 vide policy No.00000000001229880 for the period 4.9.2013 to 3.9.2014 in the name of Shri Arun Bansal. Accordingly the respondent No.3 being the insurance company shall be liable to deposit the amount of compensation on behalf of the respondents No.1 and 2. The respondent No.3 being the insurer is directed to deposit the award amount within 30 days with interest at the rate of 9% from the date of filing of the claim petition till its realization in UCO Bank, Patiala House Courts, New Delhi failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
35. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The respondent No.3 shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 19.08.2015.
Suit No. 519/14 Page no. 34 of 35 Kashmiri & others Vs. Jaikam & others An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House. File be consigned to Record Room.
Announced in open court
on this 20th day of May, 2015 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No. 519/14 Page no. 35 of 35
Kashmiri & others Vs. Jaikam & others