Delhi District Court
Shyam Lal Sharma vs Ashwani Kumar on 5 April, 2010
IN THE COURT OF MS. SEEMA MAINI : JUDGE
MOTOR ACCIDENTS CLAIMS TRIBUNAL : DELHI
FATAL CASE :
Suit No. 300/2008
Unique Case ID No: 0241C1109732008
In the matter of:
1. SHYAM LAL SHARMA,
S/o Late Sehdev Sharma
2. SMT. GYATRI,
W/o Shyam Lal Sharma
Both r/o Old Gali No. 83, Gali New No. 19,
Shiv Kunj, Sant Nagar, Burari, Delhi.
Permanent R/o: H.No. Village Dahila Mau Post Sadar,
Distt. Pratapgarh, U.P. .......Petitioners
Versus
1. ASHWANI KUMAR,
S/o Bachan Singh,
R/o Village Mankapur, PS Etawa,
Distt. Etawa, U.P.
2. SHASHI KANT,
S/o Lal Chand,
R/o B22, Shishram Park,
Uttam Nagar, Delhi.
3. IFFCO TOKIYO GENERAL INSURANCE COMPANY LTD.,
Shastri Nagar, Near Railway Crossing,
Ludhiyana (Punjab). ........Respondents
Suit No. 300/08 Page 1/18
Date of institution of the suit : 20082008 Date on which order was reserved : 18032010 Date of decision : 05042010
APPLICATION U/S 166 & 140 OF MOTOR VEHICLE ACT 1988 FOR GRANT OF COMPENSATION APPEARANCE:
Sh. S.K. Pandey, Counsel for Petitioner. Sh. Inderjeet Singh, Counsel for Respondent No. 1 and Respondent No. 2. Sh. A.C. Mittal, Counsel for Respondent No. 3.
JUDGMENT / AWARD :
The instant case has been filed on behalf of the petitioners u/s 166/140 of the Motor Vehicle Act, 1988 as amended till date (hereinafter referred to as the act) for grant of compensation on account of death of Sh. Vijay Kumar, s/o Sh. Shyam Lal Sharma in a road accident caused by the rash and negligent driving of the offending vehicle by respondent no. 1.
2. The brief facts as stated in the petition are that on 20072008, Vijay Kumar (since deceased), after completion of his duty from Marc Sanitation Pvt. Ltd., G.T. Karnal Road, Delhi, was coming back towards his house along with his maternal uncle Inspector Sharma on their respective bicycles. When he reached at Mukandpur Red Light at about 8:40 p.m., suddenly the offending Tata Truck bearing No. HR55A 5228, being driven by R1 at a high speed and in a rash and negligent manner without caring for the traffic rules, hit the bicycle of the deceased Vijay Kumar from the back Suit No. 300/08 Page 2/18 side. Due to the forceful impact, the deceased fell down on the road and sustained grievous injuries. The deceased was removed to the Trauma Centre where his MLC bearing No. 101194 dated 200708 was prepared and he was given the emergent medical aid but he succumbed to the injuries on 210708 and his post mortem was got conducted. A case bearing FIR No. 356/08 u/s 279/337/304A IPC was registered against R1 at PS Timar Pur.
3. It was stated that at the time of accident, the deceased was 21 years of age, being in private service with Marc Sanitation Pvt. Ltd., G.T. Karnal Road, Delhi and earning Rs. 5,000/ per month besides overtime @ Rs. 30/ p.h. and thus, his average income was Rs. 8,000/ per month. It was stated by the petitioners who were the parents and the only LRs of the deceased, as the petitioner being unmarried at the time of accident, that they had sustained several pecuniary and nonpecuniary losses, due to the untimely death of the deceased. Hence, the present claim petition has been filed against R1, the driver of the offending vehicle, R2 the owner of the offending vehicle, R3 the insurer of the offending vehicle.
4. Written statement was filed on behalf of R1 and R2 wherein it was stated that the petition has been filed without any cause of action and that the petitioners had suppressed the material facts from the court. The employment of the deceased with R2 was denied for want of knowledge though, it was admitted that R1 was the driver of the vehicle and R2 was the owner but it was stated that the vehicle had been falsely implicated in the criminal case as well as in the instant case even though, no accident was caused due to the rash and negligent driving of the offending vehicle by R1.
Suit No. 300/08 Page 3/18
5. WS was filed on behalf of R3 wherein it was stated that the petition was filed without any cause of action. However, it was admitted that the offending Tata Truck bearing registration No. HR55A5228 was duly insured with R3 in the name of R2 vide cover note No. 36843883 which was valid from 09072008 to 8072009. Further, it was stated that R3 would not be liable to pay any compensation if it was found that the offending vehicle was being driven by a person not holding a valid driving licence or was being plied without a valid permit or any of the terms and conditions of the insurance policy were found to have been violated.
6. On the basis of the pleadings of the parties, the following issues were framed by the predecessor of this court on 21102008 : 1 Whether Sh. Vijay Kumar died in a road accident which took place on 20072008 at 8:40 p.m, due to rash and negligent driving of Tata Truck bearing registration No. HR55A5228 by respondent No. 1 ? 2 Whether the petitioners are entitled to any compensation? If so, to what amount and from whom?
3 Relief.
7. An application u/s 170 of M.V. Act moved on behalf of R3, was allowed vide order dated 05122008.
8. Four PWs were examined in all. Petitioner No. 1 entered the witness box as PW1 and deposed on affidavit which he proved as Ex. PW1/1. He testified on oath the averments made in the petition and deposed that the deceased sustained fatal injuries in the accident, caused due to the rash and negligent driving of the offending Suit No. 300/08 Page 4/18 vehicle by R1. He categorically deposed that the deceased was working privately with Marc Sanitation Pvt. Ltd., G.T. Karnal Road, Delhi and drawing a salary of Rs. 5,000/ per month. He brought on record his election ICard as Ex. PW1/A, the copy of the high school markssheet of the deceased as Ex. PW1/B, the copy of the ration card, FIR, DL of R1, insurance policy and RC of the offending vehicle, site plan, MLC and post mortem report of the deceased and the mechanical inspection report are Mark 'A' to Mark 'I' while the copy of the salary slip of the deceased is Mark 'J'.
9. In his cross examination, he admitted that his son was receiving Rs. 2,281/ after deductions but he used to give Rs. 3,000/ to Rs. 4,000/ per month to the petitioners. In his further cross examination, he stated that he was not the eye witness of the accident.
10. PW2 Inspector Sharma, the eyewitness of the accident, entered the witness box and deposed on affidavit which he proved as Ex. PW2/1. He categorically deposed that he along with the deceased Vijay Kumar, after completing their duties, were going back home to their residence on their respective bicycles when at about 8:40 p.m. at Mukandpur Red Light, the offending Truck being driven by R1 in a rash and negligent manner and at a very high speed, hit the bicycle of the petitioner from behind. He categorically deposed that the accident took place due to the rash and negligent driving of R1.
11. In his cross examination, he stated that he was present at the spot of accident along with the deceased on his separate bicycle and that his statement was recorded by the police. He also stated that the deceased was known to him, being his nephew Suit No. 300/08 Page 5/18 and that they were both working in the same company. He denied that he and Vijay Kumar were travelling on the same bicycle or that it was their bicycle on which they lost control and the accident was caused.
12. PW3 Amit Kumar, Record Clerk from Aruna Asaf Ali Govt. Hospital produced the post mortem report of the deceased dated 21072008 bearing No. 951 as Ex. PW3/1.
13. PW4 ASI Shiv Kumar from PS Timar Pur produced the original case file of the case FIR No. 356/08, attested copies of which were taken on record as Ex. PW4/A to Ex. PW4/F. In his cross examination, he admitted that he was not the eyewitness of the accident but had only prepared the documents.
14. After close of PE, no RE was led by any of the respondents.
15. I have heard Sh. S.K. Pandey, counsel for petitioners, Sh. Inderjeet Singh, counsel for R1 and R2 and Sh. A.C. Mittal, counsel for respondent no. 3. I have also perused the record, scrutinized the evidence adduced and have also gone through the relevant case law and my issue wise finding is as under:
16. ISSUE NO. 1: Whether Sh. Vijay Kumar died in a road accident which took place on 20072008 at 8:40 p.m. Due to rash and negligent driving of Tata Truck bearing registration No. HR55A5228 by respondent No. 1 ?
Suit No. 300/08 Page 6/18 It was the emphatic testimony of PW2, the eye witness of the accident, that the accident occurred due to rash and negligent driving of offending Tata Truck bearing registration No.HR55A5228, being driven by R1, Ashwani Kumar, an averment which could not be refuted by bringing on record any rebuttal evidence.
17. R1 did not enter the witness box and it remained a bald assertion that no accident was caused due to his rash and negligent driving since he chose not to contest the petition. It would be deemed that R1 and R2 accept the testimony of the petitioners.
18. The mechanical inspection report of the offending vehicle fortifies the testimony of the petitioner that the accident took place with a forceful impact.
19. A criminal case bearing FIR No. 356/08 u/s 279/337/304A IPC was registered at P.S. Timar Pur against the respondent no. 1. Perusal of the copy of the FIR bearing no. 356/08, u/s 279/337/304A IPC, P.S. Timar Pur, shows the recording of the factum of the accident, taking place due to the rash and negligent driving of respondent no. 1, who was coming at a very high speed.
20. The certified copy of the charge sheet reveals that the police investigation has also concluded that the accident took place due to the rash and negligent driving of the driver of the offending vehicle i.e. Tata Truck bearing registration No.HR55A 5228.
21. The MLC and the post mortem report of the deceased clearly shows that the Suit No. 300/08 Page 7/18 cause of death of the deceased is due to the injuries which had been sustained by him in the road accident which was caused due to the rash and negligent driving of R1.
22. It is, therefore, prima facie established that the deceased Sh. Vijay Kumar sustained fatal injuries in the accident caused by the rash and negligent driving of the offending vehicle i.e. Tata Truck bearing registration No.HR55A5228 by R1. Accordingly, issue no. 1 is decided in favour of the petitioners and against the respondents.
23. ISSUE NO. 2: Whether the petitioners are entitled to any compensation? If so, to what amount and from whom?
The matriculation certificate and the ration card of the deceased establish his identity while the election ICard and the ration card establish the identity of petitioners No. 1 and 2. However, it was the contention on behalf of R3 that the pay slip of the deceased which has been brought on record by the petitioners shows that the petitioner was covered under the ESI Scheme and therefore, he is not entitled to claim compensation under the M.V. Act, due to the bar created by Section 53 of the ESI Act and placed reliance upon NIC Vs. Hamida Khatoon & Ors., AIR 2009 SC 2599. Furthermore, it was explained that the journey of the employee from the work place to the residence and vice versa would be given a wider meaning of an extension of his employment and in support of this contention, General Manager, B.E.S.T. Undertaking, Bombay Vs. Mrs. Agnes, AIR 1964, Supreme Court 193 and General Manager, Western Railway Bombay & Anr. Vs. Chandra Bai & Anr., 1992, ACJ, 496 was placed reliance upon.
Suit No. 300/08 Page 8/18
24. I have considered the contentions of the counsel for R3 and have also gone through the cited case law. The pay slip of the deceased for the month of July 08, copy of which has been brought on record by the petitioners themselves, reveals that the deceased Vijay Kumar was working as a Helper in Marc Sanitation Pvt. Ltd. (Plating) G.T. Karnal Road and was having an income of Rs. 2,845/. The income was under several heads and after deductions under the head of EPF, FPS, ESI, VPF and two more heads, for a total of Rs. 364/, he had a net income of Rs. 2,281/. The deduction details which has been given in the salary slip reveals that Rs. 47/ was deducted every month towards the EST Fund. Section 53 of The Employees' State Insurance Act, 1948 creates a bar against the receiving or recovering any compensation under any other Act. For ready reference, section 53 of the E.S.I. Act, 1948 is reproduced hereinbelow: "[53. Bar against receiving or recovery of compensation or damages under any other law. An insured person or his dependents shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act.]
25. Furthermore, Section 2(14) of the Act provides that : "insured person" means a person who is or was an employee in respect of whom contributions are or were payable under this Act and who is, by reason thereof, entitled to any of the benefits provided by this Act;
[(14A) "managing agent" means any person appointed or acting as the representative of another person for the purpose of carrying on such other person's trade or Suit No. 300/08 Page 9/18 business, but does not include an individual manager subordinate to an employer;] [(14AA) "manufacturing process" shall have the meaning assigned to it in the Factories Act, 1948 (63 of 1948);] [(14B) "miscarriage" means expulsion of the contents of a pregnant uterus at any period prior to or during the twentysixth week of pregnancy but does not include any miscarriage, the causing of which is punishable under the Indian Penal Code (45 of 1860);]
26. In NIC Vs. Hamida Khatoon (Supra), the Hon'ble Apex Court while discussing the scope of Section 53 observe : "10. The Workmen's Compensation Act was enacted by the legislature in 1923 with a view to provide for the payment by certain classes of employers to their workmen compensation for injury by accident. Section 3(1) of the Act provides that if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions contained in that Act. Under Section 2(1)(c) the word compensation is defined to mean compensation as provided for by the Act. The definition of the workman under the Act is as under:
"2. (1)(n) 'workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is
(i) * * *
(ii) employed in any such capacity as is specified in Schedule II.
whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to a Suit No. 300/08 Page 10/18 workman who has been injured shall, where the workman is dead includes a reference to his dependants or any of them."
27. It has been contended on behalf of R3 that admittedly on behalf of petitioner as well as from the testimony of the eyewitness PW2, it is clear that the deceased was returning back home after completing his duty. Relying upon General Manager, B.E.S.T. Undertaking, Bombay Vs. Mrs. Agnes and General Manager, Western Railway Bombay & Anr. Vs. Chandra Bai & Anr., counsel for R3 has contended that since the deceased was returning back home from his office, the said journey in view of the said cited judgments, would come within the purview of "in the course of his employment" by application of the doctrine of the notional extension of employer's premises.
28. However, I am not in conformity to the said contentions of the counsel for R3 and I place reliance upon the Regional Director, E.S.I. Corporation and Anr. Vs. Francis Decosta & Anr. (1996) 6 SCC I wherein a division bench of the Hon'ble Apex Court, in this case while discussing the scope of the words "arising out of his employment", referred to the judgment of the Hon'ble Apex Court in the case of Saurashtra Salt Manufacturing Co. Vs. Bai Valu Raja, AIR, 1958, SC 881, wherein the Hon'ble Apex Court had held "as a rule, the employment of a workman does not commence until he has reached the place of employment and does not continue when he has left the place of employment, the journey to and from the place of employment is being excluded." It was further observed in this case, as under:
"It is well settled that when a workman is on a public road or a public place or on a public transport, he is there as any other member of the public and is not there in the Suit No. 300/08 Page 11/18 course of his employment, unless the very nature of his employment makes it necessary for him to be there. A workman is not in the course of his employment from the moment, he leaves his home and is or on his way to work ".
29. Placing reliance upon the said observation of the Hon'ble Apex Court in the Saurashtra Salt Manufacturing Case (Supra), the Hon'ble Apex Court in the cited case "Regional Director, E.S.I. Corporation Vs. Francis Decosta (Supra) held that the injury caused to the person by an accident while the employee was going to his place of employment on his bicycle, would not be covered within the ambit of the term "during the course of employment".
30. Reverting back to the case in hand and guided by the observations of the Hon'ble Apex Court, in the Saurashtra Salt Manufacturing Case and Regional Director, E.S.I. Corporation and Anr. Vs. Francis Decosta Case, since the deceased was returning back home from his work on his bicycle, he was not under the course of his employment when the accident occurred and therefore, the bar created by Section 53 of the E.S.I. Act, would not be applicable in this case.
31. It has already been held in my discussion on issue No. 1 that the petitioners are the only LRs of the deceased and therefore, they shall be entitled to compensation under the following heads :
32. LOSS OF DEPENDENCY: The deceased was working with Marc Sanitation Pvt. Ltd. and as per the pay slip for the month of July 08 which has been brought on record, he was drawing a total Suit No. 300/08 Page 12/18 salary of Rs. 4,100/ per month.
33. Furthermore, as per the high school certificate of the petitioner Ex. PW1/B, the date of birth of the deceased was 15081987 and therefore, on the date of accident, he was 21 years of age while as per the election Icard of the petitioner Shyam Lal Ex. PW1/A, he was 47 years of age as on 10107 and therefore, on the date of accident, he was 48 years of age.
34. In New India Assurance Co. Ltd. vs. Shanti Pathan III (2007) ACC 505 (Supreme Court), it has been held by the Hon'ble Apex Court that: "The multiplier to be adopted is to be determined on the basis of the age of the claimant or the age of the deceased whichever is higher."
35. Reverting back to the case in hand, it would be the age of the petitioner Shyam Lal which shall determine the choice of multiplier. As per "Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr.,(2009) 6 Scale 129: the multiplier chart appended to the Schedule II of M.V. Act has been modified. As per which, keeping in view the age of the deceased, the appropriate multiplier would be 13.
36. Furthermore, in the said Sarla Verma Judgment (Supra), it has been held by the Hon'ble Apex Court that in the case of an unmarried deceased, 50% of his income would be deducted towards his living and personal expenses.
37. Accordingly, the deduction towards the personal and living expenses of the deceased would be 4,100 x 1/2 = 2,050/.
Suit No. 300/08 Page 13/18
38. Therefore, the loss of monthly dependency of the petitioners is 4,100 2,050 = 2,050/.
39. The loss of annual dependency of the petitioners would be 2,050 x 12 = 24,600/.
40. Therefore, the total loss of dependency of the petitioners would be 24,600 x 13 = 3,19,800/ which is rounded off to Rs. 3,20,000/. I accordingly, grant a sum of Rs. 3,20,000/ to the petitioners towards loss of dependency.
41. LOSS OF LOVE AND AFFECTION: In Nafe Singh Khatri & Ors. vs. Sukhdev Singh & Anr. III (2009) ACC 884 (Delhi), our own Hon'ble Delhi High Court has awarded Rs. 10,000/ each to the appellants for loss of love and affection. Accordingly, I grant a compensation of Rs. 20,000/ (Rs. 10,000/ each to petitioner no. 1 and 2) for loss of love and affection.
42. LOSS OF ESTATE: I award a compensation of Rs. 5,000/ to the petitioners on account of loss of estate.
43. FUNERAL EXPENSES: I award a compensation of Rs. 5,000/ to the petitioners on account of funeral expenses.
Suit No. 300/08 Page 14/18
44. In view of my findings above, petitioners are awarded the following compensation: LOSS OF DEPENDENCY RS. 3,20,000/ LOSS OF LOVE AND AFFECTION RS. 20,000/ LOSS OF ESTATE RS. 5,000/ FUNERAL EXPENSES RS. 5,000/ _________ TOTAL RS. 3,50,000/
45. Hence, the petitioners are awarded a total compensation of Rs. 3,50,000/ along with interest @ 7.5% p.a.
46. LIABILITY : Accordingly, it is held that R1 Ashwani Kumar, being the driver of the offending vehicle and R2 Shashi Kant, being the owner of the offending vehicle are the joint tortfeasors and are jointly and severally liable to pay the compensation amount to the petitioners while R3 i.e. Iffco Tokiyo General Insurance Company Ltd., being the insurer of the offending vehicle, is liable to indemnify the insured i.e. R2.
47. ISSUE NO. 3 : Relief.
In view of my findings on Issue nos. 1 and 2 above, the petitioners are granted a total compensation of Rs. 3,50,000/. No interim award has been passed in the instant case. Therefore, the petitioners shall be entitled to a compensation of Rs. 3,50,000/ along with interest @ 7.5% p.a. from the date of filing of the petition i.e. 20082008 till the date of despatch of the notice to the claimant, intimating the deposit Suit No. 300/08 Page 15/18 of the award amount.
48. The said compensation amount is apportioned between the petitioners as under : Pet. no. 1 Shyam Lal Sharma Rs. 1,75,000/ (along with proportionate interest) (father of the deceased) Pet. no. 2 Smt. Gyatri Rs. 1,75,000/ '' (mother of the deceased)
49. R3 Iffco Tokiyo General Insurance Company Ltd. is directed to deposit the cheques of compensation, along with proportionate interest, in the name of the petitioners, directly with the Manager SBI, Tis Hazari.
50. The Manager SBI is directed to open a Saving Bank Account in the name of the petitioners in the SBI, Tis Hazari.
51. Out of the total compensation amount of Rs. 1,75,000/ each, along with proportionate interest, awarded to both petitioner no. 1 and 2, a sum of Rs. 1,50,000/ each, shall be deposited in 6 FDRs of Rs. 25,000/ each, for the following period : st A) 1 FDR for Rs. 25,000/ for a period of 6 months.
nd
B) 2 FDR for Rs. 25,000/ for a period of 1 year.
rd
C) 3 FDR for Rs. 25,000/ for a period of 1½ years.
th
D) 4 FDR for Rs. 25,000/ for a period of 2 years.
th
E) 5 FDR for Rs. 25,000/ for a period of 3 years.
Suit No. 300/08 Page 16/18
F) 6th FDR for Rs. 25,000/ for a period of 5 years.
However, both the petitioner nos. 1 and 2 shall be entitled to receive the monthly interest upon the same, which shall be credited into the said accounts by way of automatic credit.
The balance amount of Rs. 25,000/ each, along with the entire interest shall also be credited into the Savings Bank Accounts of the petitioner nos. 1 and 2.
52. The petitioners shall be at liberty to withdraw from the aforesaid account after a due verification by the bankers, who shall issue photo Identity Card to the claimants to facilitate the establishment of identity and withdrawal.
53. The original FDRs shall be retained by the Bank in safe custody while original passbook shall be given to the claimants/petitioners along with the photocopy of the FDRs. The original FDRs shall be handed over to the claimants at the end of the fixed deposit period.
54. No loan, advance or withdrawal shall be allowed on the said FDRs without the permission of the Court.
55. On the request of the claimants, the bank shall transfer the Saving Account to any other branch of the SBI in Delhi according to the convenience of the claimants.
56. Accordingly, Respondent No. 3, Iffco Tokiyo General Insurance Company Suit No. 300/08 Page 17/18 Ltd. is directed to deposit the amount of compensation, awarded to the petitioners, by way of crossed cheques in the name of the petitioners, along with proportionate interest, with the SBI, Tis Hazari, within 30 days from today. A copy of the award be sent to Manager, SBI, Tis Hazari for compliance.
57. No order as to costs. A copy of the award be supplied to the parties, free of cost. File be consigned to Record Room.
58. Manager, SBI shall file a compliance report about opening of Saving Accounts in the names of the claimants and preparation of FDRs by 20052010.
59. Insurance Company shall file a compliance report about deposit of cheques in favour of petitioners along with a copy of the notice dispatched to the claimants and counsel intimating the deposit of cheque by 20052010.
60. Ahlmad shall prepare a separate miscellaneous file containing copy of petition/memo of parties/copy of award and last proceeding sheet be placed in the miscellaneous file, so prepared, and put up the same along with the compliance reports aforementioned on 20052010.
ANNOUNCED IN THE OPEN COURT on 5th of April, 2010 (SEEMA MAINI) JUDGE:MACT:DELHI Suit No. 300/08 Page 18/18 Suit No. 300/08 05042010 Present: None for the petitioner.
None for R1 and R2.
Clerk for the counsel for R3.
Vide my separate judgment announced in open court, the Award is passed. Petition stands satisfied. File be consigned to the Record Room.
Manager, SBI shall file a compliance report about opening of Saving Accounts in the names of the claimants and preparation of FDRs by 20052010.
Insurance Company shall file a compliance report about deposit of the award amount along with a copy of notice to the claimant/claimants and the counsel for claimant, giving intimation about the deposit by 20052010.
Ahlmad shall prepare a separate miscellaneous file containing copy of petition/memo of parties/copy of award and last proceeding sheet be placed in the miscellaneous file, so prepared, and put up the same along with the compliance reports aforementioned on 20052010.
(Seema Maini) Judge:MACT/Delhi:05042010 Suit No. 300/08 Page 19/18