Delhi District Court
) Smt. Rita Devi vs ) Sh. Sanju Kumar on 10 September, 2012
1
IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT & SESSIONS JUDGE
CUM PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI
COURTS, DELHI.
(MACT No. 113/11)
1) Smt. Rita Devi
W/o late Sh. Lal Babu Yadav, (Widow),
2) Saroj Yadav
S/o late Sh. Lal Babu Yadav, (minor son),
3) Barat Kumar Yadav
S/o late Sh. Lal Babu Yadav, (minor son),
4) Shatrughan Yadav
S/o late Sh. Lal Babu Yadav, (minor son),
(All R/o. 33 Basudevpur, PS Anchal Bahadurpur, Distt. Darbhanga (Bihar).
(Petitioners No.2 to 4 being represented through Petitioner No.1 being
mother and natural guardian).
------Petitioners
Versus
1) Sh. Sanju Kumar
S/o Sh. Prahlad Ram,
R/o. VPO Kotra, Dhani Kushalawali
via Neem Ka Thana, Tehsil, Neelkantha, Distt.Sikar
Rajasthan.
2) Sh. Prahlad Ram S/o Sh. Goma Ramji
2A Surjee Devi W/o late Sh. Prahlad Ram,
2B Sunil Kumar S/o late Sh. Prahlad Ram(both 2A & 2B LRs of R2)
All R/o. VPO Kotra, Dhani Kushalawali
via Neem Ka Thana, Tehsil, Neelkantha, Distt.Sikar
Rajasthan.
3) The Oriental Insurance Company Ltd.,
3rd floor, Anand Bhawan, Sansar Chandra Road,
Jaipur (Rajasthan).
2nd Address: 88, Janpat, First floor, New Delhi-1.
------Respondents
2
Date of institution----01.03.2011
Date of decision------10.09.2012
(Application U/s. 163A of Motor Vehicle Act
for grant of Compensation)
*******************
JUDGMENT:-
1 On the fateful day of 14.2.2009 at about 4.00 PM the deceased Lal Babu Yadav was doing labour work and was in the process of unloading the stone slabs from the truck bearing No. RJ 14 2G 7757 and got crushed under the stone slab and died on the spot. The FIR was registered in respect of this accident vide FIR No. 38/09 PS Narela, U/s. 304A IPC. The respondent No.1 is entirely responsible for the said accident and is, therefore, liable to pay compensation under the law. The respondent No.2( 2A & 2B LRs) is the registered owner of the offending vehicle and the respondent No.3 is vicariously liable to pay compensation as per law of torts, being the owner of the offending vehicle.
2 Written statement was jointly filed on behalf of respondent No.1 and 2 wherein various objections were taken and it was stated that the petitioner have been filed on the basis of surmises conjectures and on the basis of false averments and such the petition is liable to be dismissed. There is no cause of action in filing the present petition and it is filed only to harass the respondent and to extort money. Involvement of the vehicle is denied, rash and negligent driving of the vehicle was denied and other allegations were also denied.
3 Same was the reply filed on behalf of respondent No.3. In reply filed by the respondent No.3/insurance company, it is stated that without verifying it was reported that it is the duty of the driver and owner of the vehicle to prove that driver at the time of accident was having valid driving licence and the condition of 3 policy of permit were fulfilled, hence insurance company is not liable to pay the amount, though it is admitted that the vehicle is insured but tried to evade of making payment on technical grounds. On the pleadings of the parties following issues were framed on 19.12.2011:-
Issues
1. Whether Lal Babu Yadav son of late Sh. Raj Kumar Yadav died due to process of unloading the stone slabs from the truck and got crushed under the stone slab on 14.2.2009 at about 4.00 PM in front of Gali No.15, Main road, Swatantra Nagar, Narela within jurisdiction of PS Narela due to use of truck bearing No. RJ 14 2G 7757 being driven by respondent No.1 rashly and negligently ? OPP.
2. Whether the petitioners are entitled to compensation, if so, to what an extent and from which of the respondent ? OPP
3. Relief 4 Thereafter in support of its case petitioner No.1 examined herself as PW1 and proved her affidavit as Ex.PW1/A. She further proved her election card and criminal record as Ex.PW1/1 to Ex.PW1/2 (colly). During cross examination she denied the suggestion put by Ld. counsel for respondent No.3 that her husband was not earning Rs. 40,000/- per annum. PE was closed.
5 No evidence was led by the respondents.
6 I have heard the Ld. counsels for the parties as well as gone through the material placed on record carefully.
ISSUE NO.1:
7 The petitioner has proved her affidavit as Ex.PW1/A and all the criminal record 4 as Ex.PW1/1 to Ex.PW1/2 (colly). As per the case of prosecution the on 14.2.2009 at Bankner Railway Phatak More, Swantantra Nagar Gali No.15, Narela while deloading the marble stone slabs from the truck bearing No. RJ 142G 7757, one of the labour namely Lal Babu Yadav son of Raj Kumar Yadav died due to the falling of the said slabs upon him, hence case FIR No. 38/09 U/s. 304A IPC was registered at PS Narela. The certified copies of criminal record were proved on record as Ex.PW1/2 (colly) annexed with the PM report wherein it has been opined that all the injuries were antemortem, caused by blunt force impact and the cause of death being additive effect of shock with head injury.
Section 163A M.V. Act reads as under:
(1) Notwithstanding anything contained in this act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or negligent or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule-.
8 Hence the use of vehicle at the time of accident has been brought on record on the basis of material available on record. The death has been caused due to the injuries sustained due to fall of marble slab while unloading the same and it is sufficient for granting compensation u/s 163A M.V. Act. Furthermore, in clause (2) it is specified that in any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or negligent or default of the owner of the vehicle or vehicles concerned or of any 5 other person. Hence it has been proved that the death of deceased has been caused due to driving of offending vehicle in question by respondent no. 1. So in view of the above discussions, this issue is decided in favour of petitioners and against the respondents.
ISSUE NO.2 9 The present petition has been filed U/s. 163A of M.V. Act and thus the second schedule of the Act shall govern most of the conditions pertaining to award of compensation.
10 Deceased had expired before reaching the hospital and there are no medical bills. Petitioners are granted the fixed sum of Rs. 2000/- towards funeral expenses. They are also awarded fixed sum of Rs. 2500/- as loss of estate. Petitioner No.1 being the wife of the deceased is also entitled to fixed sum of Rs. 5000/- towards loss of consortium.
11 Deceased was allegedly working as labour on truck bearing No. RJ 14 2G 7757 and was earning Rs. 40,000/- per annum and she has tendered her affidavit by way of affidavit Ex.PW1/A. She was cross examined by Ld. counsel for respondent no. 3/insurance company wherein she denied the suggestion put to her that her husband was not earning Rs. 40,000/- per annum as mentioned by her in her affidavit. She further denied the suggestion that the offending vehicle was not involved in the alleged accident. In view of the unshaken testimony of PW1, I consider the earning of deceased Rs. 40,000/- per annum at the time of his death. Accident had taken place on 14.2.2009 and deceased expired on the same day as per postmortem report. In view of the unshaken testimony of PW1, I consider the earning of deceased Rs. 40,000/- per annum at the time of his death.
12 The second schedule was inserted in the Act in the year 1994 and despite directions given in the Act itself, the amount of compensation as prescribed 6 under it has not been revised by the govt. till date. Hence as 1/3 income has to be deducted towards personal expenses of the deceased as per the second schedule so the net notional income of the deceased comes to Rs. 4,26,672/- ( 40000 - 1/3th x 16).
13 In view of the above discussions, this issue is decided in favour of petitioners by holding that they are entitled to get the following total compensation from the respondent no. 3 only:
a). Funeral charges --------------------- -----Rs. 2000/-
b). Loss of Estate ---------------------------Rs. 2,500/-
c). Loss of consortium ---------------------------------Rs. 5,000/-
d). Loss of dependency --------------------------- ----Rs. 4,26,672/-
--------------------------------
Total Rs. 4,36,172/- 14 Petitioners shall be entitled to interest at the rate of 9 % p.a as per the
judgment in case New India Assurance Co. Ltd Vs Bhudhia Devi and others reported in 2010 ACJ 2045 on this amount from the date of institution of the petition i.e. 28.3.2011 till realization. In view of the above discussions, this issue is decided in favour of petitioners and against respondents.
Issue no. 3 (Relief):-
15 On the basis of findings given above, present petition is disposed off and an award is passed. Respondent no. 3 insurance company is directed to pay within 30 days a sum of Rs. 4,36,172/- to the petitioner along with interest at the rate of 9 % p.a. From 28.3.2011 till this amount is fully paid.
16 It is ordered that out of the compensation amount, 5 % compensation amount be given in cash to the petitioner No.1 i.e wife of deceased. Out of the 7 remaining compensation amount 95 % amount (50% in the name of widow and 45% to be equally divided in the name of three minor children) (Petitioner No.1/mother shall be entitled to get the interest on the said FDRs on behalf her minor children till they attain the age of majority) with upto date interest be deposited in the form of separate FDRs with HDFC bank, Rani Bagh branch for the period of five years with liberty to withdraw the monthly interest through their Saving bank accounts from this Tribunal not to be encashed without the permission of the court.
17 Respondent no.3 is directed to prepare the separate cheque of the compensation amount as per above order.
18 Copy of this judgment be given to the petitioner and counsel for the respondent no.3 for compliance.
19 File be consigned to RR.
Announced in the open (D.K.MALHOTRA)
Court on 10.09.2012 JUDGE, MACT (OUTER-II)
DELHI
8
MACT No. 113/11
10.9.2012
Pr. Counsels for parties.
RE closed.
Final arguments heard.
Vide separte judgment, the petition stands disposed off.
File be consigned to RR.
Announced in the open (D.K.MALHOTRA)
Court on 10.09.2012 JUDGE, MACT (OUTER-II)
DELHI