Delhi District Court
Smt. Ramavati Upadhyay vs United India Insurance Co. Ltd on 26 August, 2010
IN THE COURT OF SH. ARVIND KUMAR : PRESIDING OFFICER: MACT
KARKARDOOMA COURTS : DELHI
MACT No: 81/10
Unique Case ID No. : 02402C0672712007
1. Smt. Ramavati Upadhyay
W/o Late Sh. R.K. Upadhyay
2. Sh. Rohit Upadhyay
S/o Late Sh. R.K. Upadhyay
3. Ms. Renu Upadhyay
S/o Late Sh. R.K. Upadhyay
4. Smt. Indrasini Devi
S/o Late Sh. R.K. Upadhyay
All R/o 11/704, East End Apartment,
Mayur Vihar Phase-I, Extn. Delhi-110096
5. Smt. Ranjana Mishra
W/o Sh. Devender Mishra
R/o 163, Sahayog Apartment,
Mayur Vihar, Phase-I, Delhi ... Petitioners
VERSUS
1. United India Insurance Co. Ltd.
2/27, Sarai Julena
Opposite Hotel Sofital Surya,
New Friends Colony,
Okhla Road, New Delhi-110025
2. Shri Baidh Nath Singh
S/o Shri Goiri SHankar Singh
R/o Village Kala Dwar
P.O. and P.S. Ichang
District Hazari Bagh
Jharkhand
Present Address :
Village, Choura,
Sector-22, Noida,
U.P.
3. M/s Shiv Tourist
Prop. Ashok Chauhan
M-37, Jagat Ram Park,
Laxmi Nagar,
Delhi-110092 ... Respondents
Presented on : 08.10.2007 Reserved for judgment on : 27.07.2010 Judgment delivered on : 26.08.2010 JUDG MENT
1. Present claim petition has been filed by the petitioners claiming compensation of Rs. 90 lacs with interest @ 18% per annum.
2. The brief facts are that on 24.03.2006 at about 6 p.m. the deceased was travelling in the Chartered bus No. DL-IPB-5979. The deceased Sh. R.K. Upadhyay, was standing near the exit gate and the driver of the bus turned the bus slightly to his MACT No : 81/10 Page No. 1/10 left and abruptly applied the breaks. As a result of which, Sh. R.K. Upadhyay fell out from the exit gate of the bus and suffered multiple grievous injuries. Deceased was working in Engineers India Ltd as Mechanical Engineer and was getting salary of Rs. 68,474/- per month.
3. Respondent no. 2 and 3, driver and owner of the offending vehicle filed their written statements denying negligence on part of respondent no.2.
4. The respondent No. 1 i.e. United India Insurance Company Ltd, filed its written statement admitting that the vehicle was insured on the date of accident. It is stated that the accident, if any, was caused due to negligence on the part of the petitioner himself.
5. On the basis of the pleadings following issues were framed:-
1. Whether the petitioners prove that they are the LRs of deceased R.K. Upadhyay (57) and the deceased died in the road accident dt. 24.03.2006 within the jurisdiction of PS Mayur Vihar, Delhi involving vehicle number DL-1PB-5979 being driven by its driver?
2. Whether petitioners are entitled to any compensation, if so, from whom and of what amount?
3. Relief.
6. The petitioner no. 2 examined himself as PW-1, Sh. Arun Kumar Sinha as PW-2 and Sh. D.K. Dhingra as PW-3. On the other hand, respondents did not lead any evidence.
7. I have heard counsels for the parties. Ld. counsel for respondent no. 1, insurance company contended that it is a case of contributory negligence. Ld. counsel for respondent no. 1 further contended that the deceased came at the gate without waiting for the bus to stop and the deceased should have remained in his seat when the bus was moving. On the other hand, Ld. counsel for petitioner contended that there was no negligence on the part of deceased and the accident occurred because of sudden applying of brakes by the driver of the bus and the entire negligence is of the driver of the bus. Ld. counsel for respondent no. 1 contended that the petitioner is not entitled for future prospects in view of judgments passed by Hon'ble Supreme Court in 'Sarla Verma and ors. vs DTC and anr.'. On the other hand Ld. counsel for petitioner contended that the future prospects of the deceased should be taken into account. The deceased was on the verge of promotion and hence some amount should be added towards future prospects. Ld. counsel for petitioner referred to judgments AIR1980 1354 Supreme Court titled "N.K.V. Brothers Pvt. Ltd. vs M. Karumai Ammal and ors", 2003 ACJ 369 M.P. titled MACT No : 81/10 Page No. 2/10 "Basant Kaur and ors vs Chattar Pal and ors.", 2003 ACJ 105 Karnataka "Ramakrishana Reddy vs Manager, H.M.T. Ltd. and anrs", 1999 ACJ 1129 Gujrat "
Ramdev Singh vs Chudasma and ors vs Hansrajbhai V. Kodala &anr.", 2003 ACJ 213 Kerala Saramma Scaria & ors vs Mathai & ors". 1980 ACJ 55 Supreme Court "M/s Concord of India Insurance Co. Ltd. vs Nirmala Devi", 1994 ACJ 1 Supreme Court "General Manager, Kerala State Road Tpt. Cor. Vs Susamma Thomas", 1996 ACJ 831 Supreme Court "U.P. State Road Transport Corp. Vs Trilok Chandra" and 2001 ACJ 1719 Supreme Court "M.S. Grewal and anr. vs Deep Chand Sood and ors", 1995 ACJ 405 Kerala "Vijayalakshmi and ors vs Rajasekharan Nair and anr.", 1995 ACJ 393 Delhi "Delhi Transport Corporation vs Sudarshan Yadav and ors.", MAC. APP No. 237/2005 "Union of India vs Dr. Rita Pant and ors" decided by Mr. Justice J.R. Midha, MAC APP. No. 135/2008-359/2008 New India Assurance Co. Ltd. vs Ganga Devi-Ganga Devi vs New India Assurance Co. Ltd. decided by Mr. Justice J.R. Midha, 2009 ACJ 1924 Supreme Court "R.K. Malik vs Kiran Pal and ors", 2007 ACJ 2010 Delhi "R.K. Malik vs Kiran Pal and ors." 2009 ACJ 1298 Supreme Court "Sarala Verma and ors vs Delhi Transport Corporation and Anrs", Civil Appeal No. 4646/2009 "Reshma Kumar and ors vs Madan Mohan and another decided by Supreme Court, 1996 ACJ 372 Delhi "Rattan Lal Mehta vs Rajinder Kapoor and ors.", 2003 ACJ 12 Supreme Court Nagappa vs Gurudayal Singh and ors, MAC APP. No. 609/2009 decided by Mr. Justice J.R. Midha.
I have heard the rival contentions of the counsel for parties and gone through the material on record. My findings on issues are as under : -Issues No. 1
8. The PW-1 Sh. Rohit Upadhyay deposed about the death of his father and exhibited the certified copies of FIR, Charge sheet, site-plan, MLC, Postmortem report, registration certificate of the offending bus, insurance policy and mechanical inspection report as PW-1/8 to PW-1/15 respectively.
9. The testimony of PW-2 is relevant on this issue. The PW-2 Sh. Arun Kumar Sinha deposed that he was also riding the offending bus on 24.03.2006 and when the bus reached near River View, it took turn after dropping a passenger and Sh. R.K. Upadhyay, the deceased was also standing near the gate to get down to his place of destination which was at a distance of about 100 yards from that turning where the last passenger was dropped. The bus driver applied sudden brakes and because of jerk Sh. R.K. Upadhyay, the deceased fell out of the front gate of the bus MACT No : 81/10 Page No. 3/10 and suffered serious head injuries and was bleeding profusely. He was taken to AIIMS where his condition deteriorated and he died. During cross-examination the PW-2 stated that accident occurred because of abrupt application of brakes but could not tell the reason of abrupt application of brakes. The witness further stated that the deceased stood up from his seat to get down on his stop when his stop was at a distance of about 200 mtrs. The witness stated that the driver used to keep the bus stationed till the time passenger get down or board the bus. He further stated that at the time of accident Mr. Upadhyay was standing in the bus near the inner gate. The compartment of the driver in the bus was separate and boarding and exit could be done only through the compartment of the driver. He stated that jerk was so severe that Mr. Upadhyay fell out of the inner gate and out of the bus on the road. The witness denied the suggestion that Mr. Upadhyay, the deceased, fell out of the bus due to his negligence.
10. In N.K.V. Brothers Pvt. Ltd. vs M. Karumai Ammal and ors, Hon'ble Supreme courts observed that "Accident tribunals must see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes.
11. I have gone through the material on record such as FIR, Site Plan, postmortem report and the testimony of PW-2. It is admitted fact that the deceased stood up from his seat to get down while the bus stand was at the distance of 200 mtrs. and he came near to the inner gate and fell out of bus when driver applied sudden brakes. It is the duty of the driver of the bus and other staff, not to allow the passenger to come near the gate in a moving bus. There is nothing on record that driver forbade the deceased from coming near to the gate. It is also clear that the passenger had to pass through driver's compartment before alighting. The driver should have kept the inner gate closed when the bus was in motion. It is not clear from the material on record that the exit gate of the bus was closed. The only inference that can be drawn from the fact available on record, is that exit gate must have been lying open. It is again the duty of driver and staff of the bus to keep the boarding and exit gate closed in a moving bus. The above said facts clearly establish that the driver did not take the requisite care and precautions and acted negligently which led the deceased falling from the bus and receiving injury. Further the respondent no. 2 and 3 failed to lead any evidence to explain as to why the sudden brakes were applied. The respondent no.1 or the respondent no. 2 and 3 did not lead any evidence in rebuttal.
MACT No : 81/10 Page No. 4/1012. The FIR, Site-plan, postmortem report and the testimony of the PW-2, taken together fully establish the death of the deceased caused by the injuries sustained by him involving Bus registration No. DL-1PB-5979 in a road accident. There is nothing on record to dispel the inference that deceased Sh. R.K. Upadhyay, died on account of injuries sustained by him in a road accident which occurred on 24.03.2006 because of rash and negligent driving of Bus bearing No. DL-1PB-5979 being driven by the respondent No. 2. It is also established from the testimony of PW-1 that petitioners are the LRs of deceased. Issue no. 1 is accordingly decided in favour of petitioner and against the respondents.
ISSUE NO. 213. So far as grant of compensation is concerned, law is well settled.
In "M/s Concord of India Insurance Co. Ltd. vs Nirmala Devi" Hon'ble Supreme Court observed "The jurisprudence of compensation for motor accidents must develop in the direction of no fault liability and the determination of the quantum must be liberal not niggardly since the law values life and limb in free country in generous scales".
In "General Manager, Kerala State Road Tpt. Cor. Vs Susamma Thomas" Hon'ble Supreme Court observed "The determination of the quantum must answer what contemporary society 'would deem to be a fair sum such as would allow the wrong doer to hold up his head among his neighbors and say their approval that he has done the fair thing'. The amount awarded must not be niggardly since the law values life and limb in a free society in generous scales".
In "U.P. State Road Transport Corp. vs Trilok Chandra", Hon'ble Supreme Court observed "The compensation to be awarded has two elements. One is the pecuniary loss to the estate of the deceased resulting from the accident, the other is the pecuniary loss sustained by the members of his family for his death".
14. For computation of compensation in death cases, the Hon'ble Supreme Court in "Smt. Sarla Verma & ors. vs DTC & Anr, has laid down the following guidelines.
I. MULTIPLIER
Age of the deceased Multipliers (in years)
15-25 18
26-30 17
31-35 16
36-40 15
41-45 14
46-50 13
51-55 11
56-60 9
61-65 7
MACT No : 81/10 Page No. 5/10
Above 65 5
II. DEDUCTION FOR PERSONAL AND LIVING EXPENSES
1. Deceased - unmarried
(i) Deduction towards personal expenses : 1/2 (50%)
(ii) Deduction where the family of the
bachelor is large and dependent on
the income of the deceased :1/3rd(33.33%)
2. Deceased-married
(i) 2 to 3 dependent family members : 1/3rd deduction towards
personal expenses.
(ii) 4 to 6 dependent family members : 1/4th deduction towards
personal expenses.
(iii) More than 6 family members : 1/5th deduction towards
personal expenses.
III. FUTURE PROSPECTS
1. Below 40 years of age : Actual salary + 50% towards
future prospects.
2. Between 40-50 years : Actual salary + 30% towards
future prospects.
3. More than 50 years job : Actual salary only. No addition
for future prospects.
IV. NON-PECUNIARY DAMAGES
1. Compensation for loss of estate : Rs. 5,000/- to Rs. 10,000/-
2. Compensation for loss of consortium : Rs. 5,000/- to Rs. 10,000/-
3. Funeral expenses : Actual cost and medical expenses.
V. RATE OF INTEREST
Rate of interest : 7.5%
15. The PW-1, Sh. Rohit Upadhyay deposed that his father was 57 years of age and was qualified Mechanical Engineer and was gainfully employed as AGM in Engineers India Limited and was drawing a salary of Rs. 68,474/- per month. He was expected to be promoted as Deputy General Manager in the same organization and would have earned minimum Rs. 2 lacs per month. he further stated that deceased was assessed to income tax and exhibited the income tax return for the assessment year 2005-06 as PW-1/1. The PW-1 stated the he is a Computer Engineer. Ms. Renu Upadhyay the petitioner no. 3 daughter of the deceased has completed M.Sc. (Biotec), petitioner no. 4 is the mother 83 years of age and petitioner no. 5 is married daughter of the deceased and she is possessing MBBS Degree.
16. The petitioners also examined Sh. D.K. Dhingra, Manager (HR), Engineers India Ltd. as PW-3 who stated that deceased was working as Assistant General Manager and proved the salary slip of deceased as PW-3/1. He stated that performance of Sh. Upadhyay was fine and further stated that Mr. Upadhyay was due to retire in November 2008. The PW-3 also deposed that the deceased Mr. MACT No : 81/10 Page No. 6/10 Upadhyay was entitled to annual increments in his pay. During cross-examination the witness stated that income tax of Rs. 1,35,219/- out of the total gross salary of Rs. 7,33,025.95/- per annum was deducted. He stated that he has not brought the promotion policy of the organization. The salary slip, Ex.PW3/A shows that deceased was earning Rs. 68,474/- per month. The per annum salary of deceased would be Rs. 8,21,688/- and after deducting the Income tax of Rs. 1,35,219/-, the net salary comes to Rs. 6,86,469/-. Since the deceased was 57 years of age therefore following the judgment "Smt. Sarla Verma & ors. vs DTC & Anr," passed by Hon'ble Supreme Court, no amount can be added towards future prospects.
17. Interest of justice in the present case would be met if 1/3rd i.e. Rs. 2,28,823/- (per annum) is deducted as the personal and living expenses of the deceased (As there are only two dependents i.e. petitioner no. 1, wife of deceased and petitioner no. 4 i.e. mother of deceased). After such deduction the contribution to the family (dependants) is determined as Rs. 4,57,646/- per annum. The multiplier will be 9 having regard to the age of the deceased at the time of the death (57 years). Therefore, the total loss on dependency would be Rs. 4,57,646/- x 9 = Rs. 41,18,814/-.
18. In addition the claimants will be entitled to a sum of Rs. 10,000/- under the head of love and affection, Rs. 10,000/- loss of estate, Rs. 5,000/- towards funeral expenses. The widow will be entitled to Rs. 10,000/- as loss of consortium. Thus, the total compensation will be Rs. 41,53,814/-. (rounded of to Rs. 41,53,800/-) LIABILITY
19. Since Insurance company has admitted the policy as on date of accident therefore respondent no. 1, insurance company is liable to pay the compensation amount.
20. There being no evidence of violation of the policy condition and there being no evidence to support the permitted defence U/s. 149(2) of the M.V. Act, I am unable to grant the recovery rights. Therefore, insurance company shall make good the compensation in terms of the accepted policy.
RELIEF
21. While granting the relief to petitioner, I am also to award the interest @ 7.5% p.a (except for the period not specifically allowed) on the above said amount of Rs. 41,53,800/- from the date of filing of petition till realization of the amount.
MACT No : 81/10 Page No. 7/1022. In view of the above, I am directing to the respondent no. 1, insurance company to pay to the claimants a sum of Rs. 41,53,800/- inclusive of interim compensation already awarded. The respondent No. 1 has already paid interim compensation of Rs. 50,000/-. Hence the respondent No. 1, the insurer company is hereby directed to pay a compensation of Rs. 41,03,800/- within one month. The respondent No. 1 shall also pay interest @ 7.5% p.a. on the total compensation amount from the date of petition till realization to the petitioners.
23. For the aforesaid reasons, I pass the following award :-
AWARD
24. In view of the above the petition is allowed. The respondent No. 1, insurance company is liable to pay the compensation of Rs. 41,53,800/- inclusive of interim compensation already awarded. The respondent No. 1 has already paid interim compensation of Rs. 50,000/-. Hence the respondent No. 1, the insurance company is hereby directed to pay a compensation of Rs. 41,03,800/- within one month. The respondent No. 1 shall also pay interest @ 7.5% p.a. (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioners. The claimants are entitled to the compensation in the following proportions along with corresponding interest :-
(a) Petitioner No. 1 shall get Rs. 20,51,900/- along with corresponding interest
(b) Petitioner No. 2, 3 and 5 shall get Rs. 4,10,380/- each along with corresponding interest
(c) Petitioner No. 4 shall get Rs. 8,20,760/- along with corresponding interest
25. The award amount along with interest be deposited by respondent No. 1 with UCO Bank, Nodal Officer through Nodal Officer, Karkardooma Branch, within 30 days in the petitioners' accounts.
26. Upon the aforesaid amount being deposited, the UCO Bank is directed to keep the amount awarded to petitioners in fixed deposit in the following manner :-
(1) Petitioner no. 1 i. Fixed deposit of Rs. 2,00,000/- in the name of petitioner no. 1 for a period of one year, Rs. 2,00,000/- in the name of petitioner no. 1 for a period of two years, Rs. 2,00,000/- in the name of petitioner no. 1 for a period of three years, Rs. 2,00,000/- in the name of petitioner no. 1 for a period of four years, Rs. 2,00,000/- in the name of petitioner no. 1 for a period of five years, Rs. 2,00,000/- in the name of petitioner no. 1 for a period of six years, Rs. 2,00,000/- in the name of petitioner no. 1 for a MACT No : 81/10 Page No. 8/10 period of seven years, Rs. 2,00,000/- in the name of petitioner no. 1 for a period of eight years, Rs. 2,00,000/- in the name of petitioner no. 1 for a period of nine years, Rs. 2,00,000/- in the name of petitioner no. 1 for a period of ten years and rest of the amount shall be released to the petitioner no.1 with immediate effect by transferring the same to her saving bank account.
(2) Petitioner no. 2, 3 and 5 i. Fixed deposit of Rs. 1,00,000/- each in the name of petitioner no. 2, 3 and 5 for a period of one year, Rs. 1,00,000/- each in the name of petitioner no. 2, 3 and 5 for a period of two years, Rs. 1,00,000/- each in the name of petitioner no. 2, 3 and 5 for a period of three years, Rs. 1,00,000/- each in the name of petitioner no. 2, 3 and 5 for a period of four years and rest of the amount shall be released to the petitioner no. 2, 3 and 5 with immediate effect by transferring the same to their saving bank account.
(3) Petitioner no. 4 i. Fixed deposit of Rs. 1,50,000/- in the name of petitioner no. 4 for a period of one year, Rs. 1,50,000/- in the name of petitioner no. 4 for a period of two years, Rs. 1,50,000/- in the name of petitioner no. 4 for a period of three years, Rs. 1,50,000/- in the name of petitioner no. 4 for a period of four years, Rs. 1,00,000/- in the name of petitioner no. 4 for a period of five years, Rs. 1,00,000/- for a period of six years and rest of the amount shall be released to the petitioner no. 4 with immediate effect by transferring the same to her saving bank account.
27. The interest on the aforesaid FDR shall be paid monthly by automatic credit of interest in the savings account of petitioners.
28. Withdrawal from the aforesaid account shall be permitted to the petitioners after due verification and the bank shall issue photo identity card of petitioners to facilitate identity.
29. No cheque book be issued to the petitioners without the permission of the court.
30. The original fixed deposit receipts shall be retained by the bank in the safe custody. However, the original pass book shall be given to the appellant along with photocopy of the FDRs.
MACT No : 81/10 Page No. 9/1031. The original fixed deposit receipts shall be handed over to the petitioner on the expiry of the period of the FDRs.
32. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of the court.
33. Half yearly statement of account be filed by the bank in the court.
34. On the request of the petitioner, the bank shall transfer the saving account to any other branch of UCO bank according to the convenience of the petitioners.
35. The petitioner shall furnish all the relevant documents for opening of the saving bank account and fixed deposit account to Nodal Officer, UCO Bank, Karkardooma Court, Delhi.
36. List for reporting compliance on 11.10.2010.
37. A copy of the order be given dasti to concerned parties.
38. Copy of this order be also sent to Nodal Officer, UCO Bank, Karkardooma Branch, Delhi.
ANNOUNCED IN THE OPEN ( Arvind Kumar )
COURT ON 26.08.2010 Presiding Officer: MACT:
Karkardooma Court
Delhi
MACT No : 81/10 Page No. 10/10