Delhi District Court
Smt. Kusum @ Kusumlata vs Om Pal @ Shera Page No. 1 Of 33 on 15 October, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.142/14
Date of Institution: 18.12.2013
IN THE MATTER OF:
1. Smt. Kusum @ Kusumlata
W/o Late Shri Jamuna Prasad
2. Virender Kumar
S/o Late Shri Jamuna Prasad
3. Ms. Laxmi
D/o Late Shri Jamuna Prasad
4. Shri Pradeep Kumar
S/o Late Shri Jamuna Prasad
Through his mother
Smt. Kusum @ Kusumlata
All R/o H.No.C24
Sahyog Vihar, J.J. Colony
Uttam Nagar
Delhi110059.
5. Smt. Prabhoo Devi
W/o Late Shri Ram Bharos
R/o H.No.68, Village Saramajanamati
PS Lalganj, District Pratapgarh
Uttar Pradesh. ...Petitioners
Suit No.142/14
Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 1 of 33
Versus
1. Shri Ompal @ Shera
S/o Shri Ram Naresh
R/o Village Kharagpur
Post Pisoli, Mauja Tajpur
Tehsil Bidhuna, Dist. Orria
Uttar Pradesh. (Driver)
2. Shri Vishwanath Singh
S/o Shri Sumer Singh
R/o VPO Tindoli
Mainpuri, Uttar Pradesh. (Owner)
3. Cholamandalam MS Insurance Company Ltd.
Plot No.6, 1st Floor
Near Metro Pillar No.81
Main Pusa Road
Karol Bagh, New Delhi.
Vide Policy No.3373/00391474/000/00 (Insurer) ...Respondents
Final Arguments heard : 12.09.2014 Award reserved for : 15.10.2014 Date of Award : 15.10.2014 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.142/14
Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 2 of 33
2. It is the case of the petitioners that on 25.10.2013 at about 09.05 a.m, the deceased Shri Jamuna Prasad was riding his bicycle then all of a sudden a white colour Xylo bearing No.UP84T2599 being driven by its driver respondent No.1 came from behind in high speed and in rash and negligent manner and hit the deceased from behind, due to the hit by the offending vehicle he succumbed to his injuries on the spot itself. Later on the dead body of the deceased was taken to AIIMS Trauma Center by the police and his MLC No.395891 dated 25.10.2013 was prepared. It is averred that if the respondent No.1/ driver of the offending vehicle bearing No.UP84T2599 had been a bit cautious, the accident could have been avoided. It is averred that the accident had been caused purely due to the rash and negligent driving of the offending vehicle by its driver. It is stated that the deceased Jamuna Prasad was taken to AIIMS Trauma Center by the police where the doctors declared him dead. It is stated that in respect of the accident FIR No.189/2013 under Sections 279/304A IPC was registered at PS South Campus, Delhi.
3. It is stated that the deceased was 47 years old and working as a gardener at Dusshera Park, Anand Niketan, R.K. Service Centre, Chanakya Puri and at Vasant Kunj and was earning Rs.15,000/ p.m. It is averred that the deceased was a teetotaler and was possessing very sound health and physique and he was not suffering from any ailments. It is averred that if the deceased had not expired in the accident, he would have survived upto the age of at least 85 to 90 years. It is averred that late Shri Jamuna Prasad was Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 3 of 33 the only earning member in his family. He was of young age and was having a long life to survive and if he had remained alive, he would have survived for another 50 years. It is averred that due to the untimely death of Shri Jamuna Prasad, the petitioners had been deprived of his income, guidance and love and affection. It is stated that if the deceased Jamuna Prasad had survived, his income would have increased manifold. It is averred that late Shri Jamuna Prasad was very hard working and enthusiastic and he was working at three places and having a bright future. His income had been rising progressively and he was a permanent source of income for his family. It is stated that the petitioners had spent a sum of Rs.50,000/ on funeral and transportation of late Shri Jamuna Prasad. It is averred that the petitioners are finding it very difficult to pull on day to day life due to nonavailability of financial help and the petitioner No.1 is worrying day and night about the education and future of her daughter and two sons. The petitioner No.1 is much worried about the arrangement of marriage of her daughter. It is averred that the accident had brought all the petitioners on the brink of hunger and starvation. The petitioner No.1 had lost the company of her husband and she was suffering a great trauma and mental sickness due to the untimely death of her husband. It is averred that all the petitioners had lost the noble guidance from late Shri Jamuna Prasad. It is averred that the deceased late Shri Jamuna Prasad was very much dedicated to his family. He used to take special care of his children and their education and if late Shri Jamuna Prasad had survived, he would have taken all the children to their prosperous future. It is averred that the Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 4 of 33 petitioner No.1 had lost the company of her husband which could never be fulfilled during her life time. It is stated that the respondent No.1 is the driver, respondent No.2 is the owner and respondent No.3 is the insurance company of the offending vehicle No.UP84T2599, hence all the respondents are jointly, severally and vicariously liable to pay the compensation that may be awarded to the petitioners. It is prayed that an amount of Rs.45,00,000/ be awarded as compensation in favour of the petitioners and against the respondents.
4. Reply was filed on behalf of the respondent No.1 taking the preliminary objections that the petitioners have not come with clean hands as they have suppressed the material facts. It is averred that the respondent No.1 is the driver of the alleged offending vehicle and the respondent No.1 has a valid and effective driving license bearing No.35147/TV/T/2012 dated 13.06.2012 issued by Licensing Authority, Tuensang, Nagaland which is duly valid from 13.06.2012 to 15.07.2013. It is averred that on false and fabricated ground by the petitioners, FIR No.189/13 was lodged under Sections 279/304A IPC against the respondent No.1 who was falsely implicated to get the insurance claim amount. It is averred that the respondent No.1 was driving the alleged offending Xylo bearing No.UP84T2599 in accordance with all the traffic rules and regulations at the time of the accident, but the petitioners having colluded with the IO had falsely implicated the respondent No.1. It is averred that there is no liability of the respondent No.1 for the factum of the accident. It is stated Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 5 of 33 that the amount of compensation claimed by the petitioners is highly exorbitant and without any basis. It is averred that the respondent No.1 is not liable to pay any amount of compensation to the petitioners and if they are entitled to any compensation, the insurance company i.e. the respondent No.3 may be liable to pay the same as the alleged offending vehicle bearing No.UP84T259 was duly insured at the time of the accident with M/s. Cholamandalam Insurance Company, vide policy No.3373/00391474/000/00 issued in the name of respondent No.2 for the period 22.06.2013 to 21.06.2014, so the respondent No.1 was not liable to pay any compensation to the petitioners. It is stated that no accident had taken place by the alleged offending vehicle bearing No.UP84T 259 driven by its driver and the local police of police station South Campus, New Delhi, in connivance with the petitioners had falsely implicated the alleged offending vehicle in the case. The contents of FIR No.189/13 as to the negligence of the driver/ Shri Om Pal of the insured vehicle were denied as also all the allegations made with regard to the factum of the alleged accident and cause thereof and it is stated that the vehicle in question of the driver was not involved in any manner in the accident and the respondent No.1 was not present there at the spot or around it but the driver was falsely implicated in the case. It is stated that the driver/ respondent No.1 was nowhere seen pertaining to the accident and there is no eye witness or public witness found at the time of the accident or at any stage of investigation by the IO nor the IO found any eye witness or public witness at the hospital and even no eye witness had called from the spot. It is averred Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 6 of 33 that later on one known of the petitioners in connivance with the petitioners and helping hand of the IO had falsely implicated the eye witness who was saying that the driver was driving the vehicle negligently and ran away after hitting the deceased. It is averred that at the time of the DD call, neither the eye witness had disclosed the number of the alleged offending vehicle nor the driver was seen at the time of the accident. It is averred that it was beyond imagination how the IO believing the statements of the relative of the deceased had falsely implicated in the case. It is averred that the driver was going via the same road duly following the traffic rules and the petition filed by the petitioners is based on false facts and concocted story. The averments made in the claim petition were denied. It is denied that the Xylo bearing No.UP84T2599 was driven by the respondent No.1 at very high speed, rashly, carelessly and in a negligent manner and hit the deceased. It is averred that the accident had not taken place with the driver/ respondent No.1 and a false case was registered against the respondent No.1 with the collusion of the police. It is averred that the respondent No.1/ driver was having valid driving license No.35147/TV/T/2012 issued from Nagaland on the alleged date of accident and as the police officials had falsely implicated him in the case and to avoid thereby further confrontation they did not give his driving license and intentionally and deliberately the IO had mentioned that the driver was not having driving license despite the fact that he had disclosed of valid driving license.
Suit No.142/14
Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 7 of 33
5. Respondent No.2 filed his separate written statement taking similar preliminary objections as those taken by the respondent No.1 and making similar averments as those made by the respondent No.1 in his written statement. It is averred that the respondent No.2 is the owner of the alleged offending vehicle which was being driven by the respondent No.1 who was having a valid and effective driving license bearing No.35147/TV/T/2012 dated 13.06.2012 issued by Licensing Authority, Tuensang, Nagaland and was duly valid from 13.06.2012 to 15.07.2013. It is averred that on false and fabricated ground by the petitioners, the FIR No.189/13 was lodged under Sections 279/304A IPC against the respondents No.1 and 2 who were falsely implicated to get the insurance claim amount. It is averred that there is no liability of the respondent No.2 for the factum of the accident. It is averred that a false case was registered against the respondents No.1 and 2 with the collusion of the police.
6. Written statement was also filed on behalf of the respondent No.3 taking the preliminary objections that the amount claimed by the petitioners is very much excessive, exorbitant and without any basis. It is averred that since no intimation as required under Section 134 C of Motor Vehicles Act was ever given to the respondent No.3 of the alleged accident involving vehicle No.UP 84T 2599 as such the claim petition was liable to be dismissed. It is averred that the owner of the insured vehicle had committed breach of the terms of the policy by handing over the vehicle to a driver who was not holding any license Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 8 of 33 and as such was challaned under Section 3/181 M V Act. It is averred that the breach committed by the insured is fundamental in nature. It is averred that in case the vehicle was driven without valid permit and fitness then also the respondent No.3 would not be liable. It is stated that the petitioners are not the legal heirs of the deceased and as such are not entitled to any compensation. The averments made in the claim petition were denied. It is denied that the accident occurred in the manner as alleged by the petitioners. It is averred that the vehicle No.UP84T25 was insured with the respondent No. 3 vide policy No.3373/00391474/000/00 valid from 22.06.2013 to 21.06.2014. It is averred that no amount is payable by the respondent No.3 as the insured had committed breach of the terms of the policy.
7. The Detailed Accident Report was filed by the IO on 18.12.2013 and the claim petition was also filed the same day. From the pleadings of the parties, the following issues were framed vide order dated 24.02.2014:
1. Whether the deceased sustained fatal injuries in the accident which occurred on 25.10.2013 at about 9.00 hrs at Shanti Path towards Moti Bagh Flyover, near Bus Stop opposite New Moti Bagh, New Delhi, caused by rash and negligent driving of vehicle No.UP84T2599, driven by respondent No.1 and owned by respondent No.2 and insured with respondent No.3? OPP
2. Whether the LRs of the deceased are entitled for compensation? If so, to what amount Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 9 of 33 and from whom?
3. Relief.
8. On behalf of the petitioners the petitioner No.1 Smt. Kusum @ Kusumlata entered into 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 the deceased used to give his whole earning for the family. She also stated that the deceased late Shri Jamuna Prasad was hale and hearty at the time of the accident. The DAR along with the documents is Ex.PW1/1 (colly), copy of Aadhar Card is Ex.PW1/2 and Educational Certificate of deceased is Ex.PW1/3. PE was closed on 28.3.2014.
9. The respondent No.1 Shri Ompal appeared in the witness box as R1W1 and relied upon the copy of his DL which is Ex.R1W1/1 and he also relied upon the copy of reply to the petition. No RE was produced by the respondent No.3. RE was closed on 7.6.2014.
10. I have heard the Learned Counsel for the petitioners as well as the Learned Counsels for the respondents and perused the record. The petitioners were also examined on 19.7.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
Suit No.142/14
Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 10 of 33
11. My findings on the specific issues are as under:
Issue No. 1
12. 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 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 Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 11 of 33 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.
13. The case of the petitioners is that on 25.10.2013 at about 09.05 a.m, the deceased Shri Jamuna Prasad was riding his bicycle, then all of a sudden a white colour Xylo bearing No.UP84T2599 being driven by its driver respondent No.1 came from behind in high speed and in rash and negligent manner and hit the deceased from behind, due to the hit by the offending vehicle he succumbed to his injuries on the spot itself. Later on the dead body of the deceased was taken to AIIMS Trauma Center by the police and his MLC No.395891 dated 25.10.2013 was prepared. It was averred that if the respondent No.1/ driver of the offending vehicle bearing No.UP84T2599 had Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 12 of 33 been a bit cautious, the accident could have been avoided. It was averred that the accident had been caused purely due to the rash and negligent driving of the offending vehicle by its driver. It was stated that the deceased Jamuna Prasad was taken to AIIMS Trauma Center by the police where the doctors declared him dead. It was stated that in respect of the accident FIR No. 189/2013 under Sections 279/304A IPC was registered at PS South Campus, Delhi. In paras 2 and 3 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.
14. The IO had filed the DAR on which reliance has been placed by the petitioners comprising of the criminal record consisting of copy of charge sheet, copy of FIR No.189/2013 under sections 279/304A IPC, PS South Campus, copy of site plan, copy of seizure memos, copy of mechanical inspection report of the Xylo car No.UP84T2599 and of the cycle, copy of arrest memo, copy of MLC and post mortem report, copy of handing over memo of the dead body, copy of RC of the offending vehicle along with its verification report, copy of permit in respect of the offending vehicle along with its verification report and authorization certificate, copy of insurance policy with its verification report, copy of notice under Section 133 MV Act, , copies of photographs, copies of statements under Section 161 Cr.P.C. and copies of documents in respect of the LRs of the deceased and the deceased and copy of order on the application for superdari along with copy of superdarinama. As per the FIR No.189/2013 under sections 279/304A IPC, PS South Campus the Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 13 of 33 case was registered on the basis of complaint of SI Manjeet Kumar (on DD). As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/304A IPC and 3/181 MV Act.
15. The respondents No.1 and 2 had filed their written statement averring that the respondent No.1 was the driver of the alleged offending vehicle. It was averred that on false and fabricated ground by the petitioners, FIR No.189/13 was lodged under Sections 279/304A IPC against the respondents No.1 and 2 who were falsely implicated to get the insurance claim amount. It was averred that the respondent No.1 was driving the alleged offending Xylo bearing No.UP84T2599 in accordance with all the traffic rules and regulations at the time of the accident, but the petitioners having colluded with the IO had falsely implicated the respondent No.1. It was averred that there was no liability of the respondents No.1 and 2 for the factum of the accident. It was stated that no accident had taken place by the alleged offending vehicle bearing No.UP84T259 driven by its driver and the local police of police station South Campus, New Delhi, in connivance with the petitioners had falsely implicated the alleged offending vehicle in the case. The contents of FIR No.189/13 as to the negligence of the driver/ Shri Om Pal of the insured vehicle were denied as also the allegations made with regard to the factum of the alleged accident and cause thereof and it was stated that the vehicle in question of the driver was not involved in any manner in the accident and the respondent No.1 was not present there at the spot or around it but the driver was falsely implicated Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 14 of 33 in the case. It was stated that the driver/ respondent No.1 was nowhere seen pertaining to the accident and there was no eye witness or public witness found at the time of the accident or at any stage of investigation by the IO nor he found any eye witness or public witness at the hospital and even no eye witness had called from the spot. It was averred that later on one known of the petitioners in connivance with the petitioners and helping hand of the IO had falsely implicated the eye witness who was saying that the driver was driving the vehicle negligently and ran away after hitting the deceased. It was averred that at the time of the DD call, neither the eye witness had disclosed the number of the alleged offending vehicle nor the driver was seen at the time of the accident. It was averred that it was beyond imagination how the IO believing the statements of the relative of the deceased had falsely implicated in the case. It was averred that the driver was going via the same road duly following the traffic rules and the petition filed by the petitioners was based on false facts and concocted story. It was denied that the Xylo bearing No.UP84T2599 was driven by the respondent No.1 at very high speed, rashly, carelessly and in a negligent manner and hit the deceased. It was averred that the accident had not taken place with the driver/ respondent No.1 and a false case was registered against the respondents No.1 and 2 with the collusion of the police. It was averred that the respondent No.1/ driver was having a valid and effective driving license No.35147/TV/T/2012 dated 13.6.2012 issued by Licensing Authority, Tuensang, Nagaland on the alleged date of the accident which was duly valid from 13.06.2012 to 15.07.2013 and Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 15 of 33 as the police officials had falsely implicated him in the case and to avoid thereby further confrontation they did not give his driving license and intentionally and deliberately the IO had mentioned that the driver was not having driving license despite the fact that he had disclosed of valid driving license. The respondent No.1 had also appeared in the witness box as R1W1 and relied upon the copy of his DL which is Ex.R1W1/1 and he also relied upon the copy of reply to the petition.
16. During crossexamination by the learned counsel for the respondent No.3 PW1 stated that she had not seen the accident taking place. Thus PW1 was not an eyewitness to the accident. It may be argued on behalf of the respondents that PW1 was not an eyewitness to the accident and the petitioners had not examined any eye witness to prove the negligence of the respondent No.1 and as such the petitioners had failed to prove the negligence of respondent No.1. In fact it was stated in the written statement filed on behalf of the respondents No.1 and 2 that there was no eye witness or public witness found at the time of the accident or at any stage of investigation by the IO nor he found any eye witness or public witness at the hospital and even no eye witness had called from the spot. It is true that PW1 had stated that she had not seen the accident taking place and no other eye witness has been produced in the witness box but the respondents No.1 and 2 who are the driver and owner of the offending vehicle have not produced anything to dispute the version put forth by the petitioners. The respondent No.1 had Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 16 of 33 appeared in the witness box as R1W1 and during crossexamination by the learned counsel for the petitioners R1W1 admitted that FIR No.180/13 under Sections 279/304A PS South Campus was registered against him. He stated that he had not made any complaint to any police official/ higher authority against his false implication in the present case. He admitted that due to his negligence the accident took place. Thus R1W1 had admitted that FIR was registered against him and that he had not made any complaint to any police official/ higher authority against his false implication in the present case. It is also pertinent that in the written statement filed by the respondents No.1 and 2 it was stated that the respondent No.1 had been falsely implicated in the present case but during crossexamination R1W1 himself admitted that due to his negligence the accident took place. Even in the written statement it had been stated that the driver was going via the same road duly following the traffic rules and thus it was admitted that the respondent No.1 was going via the same road. As such there is nothing to dispute that the accident had taken place due to the negligence of the respondent No.1. The criminal record has been placed on record which shows that the respondent No.1 has already been charge sheeted for the offence under sections 279/304A IPC and 3/181 MV Act. 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. There is no specific evidence from the respondents to disprove the particulars of the Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 17 of 33 accident or the involvement of vehicle No.UP84T2599. The fact that the charge sheet is filed against the respondent No.1 and the respondent No.1 is facing criminal trial is also not disputed. In view of the testimony of PW1 and the documents on record which have remained unrebutted, the negligence of respondent No.1 has been prima facie proved.
17. A perusal of the criminal record shows that the respondent No.1 was also chargesheeted for the offence under Sections 3/181 MV Act and it was contended that the respondent No.1 was not in possession of a valid and effective driving license on the date of the accident. The respondent No.1 had appeared in the witness box as R1W1 and produced the copy of his DL which is Ex.R1W1/1. He was extensively crossexamined regarding the same and during crossexamination by the learned counsel for the insurance company R1W1 admitted that at the time of the accident he was having a duplicate copy of his DL. He stated that the original was kept at his home village. He stated that he was driving Xylo at the time of the accident which is a commercial vehicle. He stated that the vehicle was empty. He was going from Noida to Gurgaon to his home. He stated that the DL was issued from Nagaland. He stated that all types of vehicles are permitted to be driven by the said DL. He stated that he knew the validation of DL i.e. 14.07.2016. He stated that he had personally gone to Nagaland to get registered the DL from RTO Nagaland. He denied the suggestion that the said DL was fake or that he was not having any DL to drive the alleged vehicle at the time of the accident. Thus Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 18 of 33 R1W1 admitted that at the time of the accident he was having a duplicate copy of his DL though he stated that the original was kept at his home village. He stated that he was driving Xylo at the time of the accident which is a commercial vehicle and was empty. He reiterated that the DL was issued from Nagaland and stated that all types of vehicles were permitted to be driven by the said DL. A perusal of the DL copy of which is on record shows that the endorsement was made on the same for MC, LMV on 13.6.2012 and for End HTV, HGV on 15.7.2013 and as such on the date of the accident i.e. 25.10.2013 the license was valid to drive the alleged offending vehicle. A suggestion was put to R1W1 that the said DL was fake and that he was not having any DL to drive the alleged vehicle at the time of the accident which he denied and even no evidence has been led on behalf of the respondent No.3 to show that the DL produced by the respondent No.1 was fake. As such there is nothing to show that the DL produced by the respondent No.1 was fake or that he was not in possession of a valid driving license on the date of the accident.
18. It was stated that due to the hit by the offending vehicle the deceased succumbed to his injuries on the spot itself. Later on the dead body of the deceased was taken to AIIMS Trauma Center by the police and his MLC No. 395891 dated 25.10.2013 was prepared. It was stated that the deceased Jamuna Prasad was taken to AIIMS Trauma Center by the police where the doctors declared him dead. The post mortem report is also on record which Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 19 of 33 shows that the death was due to craniocerebral damage consequent upon blunt force/ surface impact to head and that all injuries were antemortem in nature and could be possible in the manner as alleged. Thus it stands established that the deceased had sustained injuries in the alleged accident due to which he died. As such issue No.1 is decided in favour of the petitioners and against the respondents.
ISSUE No.2
19. Since issue No.1 has been decided in favour of the petitioners they would be entitled to compensation. The petitioners are the legal representatives of the deceased being the wife, two daughters and one minor son and mother of the deceased Late Shri Jamuna Prasad. PW1 was cross examined on the point of dependency and during crossexamination by the learned counsel for the respondent No.3 PW1 stated that she is illiterate. She stated that she has three children, Virender aged 23 years, Laxmi aged 21 years and Pradeep who is 16 years old. She denied the suggestion that Virender and Laxmi are working volunteered they are studying. She stated that Virender is in Class Xth and Laxmi is in class XIIth. She denied the suggestion that her two elder children were not dependent on her husband. She stated that the youngest child is also studying. She stated that she is a housewife. Thus PW1 stated that she has 3 children. During examination by the Tribunal the petitioner No.1 Kusum @ Kusumlata stated that she is 40 Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 20 of 33 years old at present. She stated that she is not working and that she has three children. Thus being the wife of the deceased the petitioner No.1 would be regarded as dependent on the deceased. The petitioner No.2 Virender Kumar stated that he is aged about 23 years at present. He stated that he is in class 12th. It is true that PW1 had stated that Virender was in class Xth and Virender had also stated that he was in class XIIth but being a major he cannot be regarded as dependent on the deceased. The petitioner No.3 Ms. Laxmi stated that she is 20 years old at present and is studying in class 12th. Though the petitioner No.3 is also a major but being an unmarried daughter she would be regarded as dependent on the deceased. The petitioner No.4 Pradeep Kumar stated that he is 17 years old at present and is studying in class 11th and being a minor he would be regarded as dependent on the deceased. The petitioner No.5 Smt. Prabhoo Devi being the mother of the deceased would also be regarded as dependent on the deceased. As such the petitioner No.1 being the wife and the petitioners No.3 and 4 being the children and the petitioner No.5 being the mother would be regarded as dependent on the deceased.
20. The petitioners have claimed loss of dependency on the basis that the deceased was 47 years old and working as a gardener at Dusshera Park, Anand Niketan, R.K. Service Centre, Chanakya Puri and at Vasant Kunj and was earning Rs.15,000/ p.m. It was averred that the deceased was a teetotaler and was possessing very sound health and physique and he was Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 21 of 33 not suffering from any ailments. It was averred that if the deceased had not expired in the accident, he would have survived upto the age of at least 85 to 90 years. It was averred that late Shri Jamuna Prasad was the only earning member in his family. He was of young age and was having a long life to survive and if he had remained alive, he would have survived for another 50 years. It was averred that due to the untimely death of Shri Jamuna Prasad, the petitioners had been deprived of his income, guidance and love and affection. It was stated that if the deceased Jamuna Prasad had survived, his income would have increased manifold. It was averred that late Shri Jamuna Prasad was very hard working and enthusiastic and he was working at three places and having a bright future. His income had been rising progressively and he was a permanent source of income for his family. It was averred that the petitioners were finding it very difficult to pull on day to day life due to non availability of financial help and the petitioner No.1 was worrying day and night about the education and future of her daughter and two sons. The petitioner No.1 was much worried about the arrangement of marriage of her daughter. It was averred that the accident had brought all the petitioners on the brink of hunger and starvation. The petitioner No.1 had lost the company of her husband and she was suffering a great trauma and mental sickness due to the untimely death of her husband. It was averred that all the petitioners had lost the noble guidance from late Shri Jamuna Prasad who was very much dedicated to his family. He used to take special care of his children and their education and if late Shri Jamuna Prasad had survived, he would have taken Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 22 of 33 all the children to their prosperous future. PW1 in paras 4, 5, 6, 8 and 9 of her affidavit Ex.PW1/A had deposed to that effect. She stated that the deceased used to give his whole earning for the family. She also stated that the deceased late Shri Jamuna Prasad was hale and hearty at the time of the accident. Educational Certificate of the deceased is Ex.PW1/3. However the petitioners have not placed on record any document to show that the deceased was indeed working as a gardener or where he was working or that he was earning Rs.15,000/ p.m.
21. During crossexamination by the learned counsel for the respondent No.3 PW1 stated that her husband was working as a gardener in park. He was working in Dussehra Park, park in Vasant Kunj and at R.K. Service Center. She stated that he used to go to all the three places daily. She stated that her husband used to earn Rs.15,000/ p.m. She had not placed any document on record to show that her husband was earning Rs.15,000/ pm, or that he was working as a gardener at the said places. She stated that her husband was Xth pass. Thus PW1 reiterated that her husband was working as a gardener in park and that he was working in Dussehra Park, park in Vasant Kunj and at R.K. Service Center. She stated that he used to go to all the three places daily. She stated that her husband used to earn Rs.15,000/ p.m. It is pertinent that PW1 herself stated that she had not placed any document on record to show that her husband was earning Rs.15,000/ p.m, or that he was working as a gardener at the said places. Thus no document has Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 23 of 33 been produced to show that the deceased was earning Rs.15,000/ p.m. or that he was working as a gardener at three places and even no witness has been produced in the witness box to prove that the deceased was indeed working as a gardener at three places. PW1 had stated that her husband was Xth pass and the educational certificate of the deceased is Ex.PW1/3 which also shows the same. In the absence of documentary evidence the income of the deceased would have to be computed on the basis of minimum wages for a matriculate prevalent on the date of the accident i.e 25.10.2013 which were Rs.9,802/ per month. Thus the actual income of the deceased for the computation of loss of dependency would be Rs.9,802/.
22. It is the case of the petitioners that the deceased was 47 years of age at the time of the accident and it was so stated in the claim petition. The post mortem report also mentions the age of the deceased as 47 years. The copy of the educational certificate of the deceased is on record as Ex.PW1/3 which shows his date of birth to be 2.11.1963. As such the deceased would have been more than 49 years old on the date of the accident i.e. 25.10.2013. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case the multiplier of 13 applies for calculating the loss of income where the age of the deceased is 46 to 50 years.
23. As observed above the dependents on the deceased are his wife, two children and mother. As per the judgment of the Hon'ble Supreme Court in Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 24 of 33 Sarla Verma's case as the number of dependents was 4 there would be 1/4th deduction towards personal and living expenses of the deceased. As regards the future prospects in Rajesh and Ors. v Rajbir Singh and Ors. 2013 (6) SCALE 563 the Hon'ble Supreme Court held as under:
"11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age.
In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years."
12.In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
Suit No.142/14
Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 25 of 33 Thus the petitioners would be entitled to addition of 30% of the income towards future prospects as the deceased was more than 40 years of age. Accordingly the loss of dependency as per the monthly income i.e. Rs. 9,802/ is calculated as under :
Rs.9,802/ + Rs.2,941/ approximately (30% future prospects) = Rs.
12,743/ X 12 (annual) X 13 (multiplier) - 4,96,977/ (1/4th towards personal expenses) = Rs.14,90,931/ rounded off to Rs.14,91,000/.
24. The petitioners are also entitled to compensation for loss of love and affection, loss of consortium, loss of estate and funeral expenses. PW1 had deposed that she had spent a sum of Rs.50,000/ on funeral and transportation of the body of her husband. During crossexamination by the learned counsel for the respondent No.3 PW1 denied the suggestion that she had not spent Rs.50,000/ on funeral expenses. However there is nothing to show the same. The learned counsel for the petitioners has relied upon the judgment of the Hon'ble Supreme Court in Kalpanaraj & Ors. v. Tamil Nadu State Transport Corpn. II (2014) ACC 448 (SC) where Rs.1,00,000/ were awarded towards loss of consortium and loss of love and affection and towards loss of estate and towards loss of expectation of life and Rs.50,000/ towards funeral expenses. However as regards the loss of estate it is seen that in the case before the Hon'ble Supreme Court the deceased was an income Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 26 of 33 tax payee whereas in the instant case the income of the deceased has been computed on the basis of minimum wages.
The total compensation is determined as under:
Loss of dependency : Rs.14,91,000/
Love and affection : Rs.1,00,000/
Loss of Consortium : Rs.1,00,000/
Loss of Expectation of Life : Rs.1,00,000/
Loss of Estate : Rs.10,000/
Funeral expenses : Rs.50,000/
Total : Rs.18,51,000/
Thus, the total compensation would amount to Rs.18,51,000/. RELIEF
25. The petitioners are awarded a sum of Rs.18,51,000/ (Rs.Eighteen Lacs Fifty One 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. The petitioner No.5 Smt. Prabhoo Devi would be entitled to 20% share in the awarded amount; the petitioner No.2 Shri Virender Kumar would be entitled to 10% share in the awarded amount and the petitioners No.3 and 4 i.e. Ms. Laxmi and Shri Pradeep Kumar would also be entitled to 10% share each in Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 27 of 33 the awarded amount and the petitioner No.1 Smt. Kusum @ Kusumlata would be entitled to 50% share in the awarded amount.
26. 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 entire share of the petitioners No.2, 3 and 50% of the share of the petitioner No.5 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.5 be kept in FDR in UCO Bank, Patiala House Court, New Delhi for a period of 3 years. The entire share of the petitioner No.4 be kept in FDR till he attains the age of majority and for 3 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.142/14
Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 28 of 33
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight 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 Kusum @ Kusumlata, Virender Kumar, Laxmi, Pradeep Kumar and Smt. Prabhoo Devi 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. Suit No.142/14
Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 29 of 33
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.
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.
Suit No.142/14
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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.
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.
27. 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
28. The respondent No.1 is the driver and the 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 Suit No.142/14 Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 31 of 33 severally liable. No evidence has been led on behalf of the respondent No.3. Respondent No.3 i.e. Cholamandalam MS Insurance Co. Ltd. being the insurance company in its reply had admitted that the vehicle No.UP84T25 was insured with the respondent No. 3 vide policy No.3373/00391474/000/00 valid from 22.06.2013 to 21.06.2014. There is no evidence on behalf of respondent No.3 to show that there was any violation of the rules and terms of policy by the respondents and in fact the duly verified documents regarding the offending vehicle were placed on record by the IO with the DAR and the DL was also valid. Hence, the respondent No.3 being the insurance company in respect of the offending vehicle is liable to pay the 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.
29. 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 24.12.2014.
Suit No.142/14
Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 32 of 33 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 15th day of October, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No.142/14
Kusum @ Kusumlata Vs. Om Pal @ Shera Page no. 33 of 33