Delhi District Court
Smt. Anita Devi W/O Late Shri Shiv Mohan vs Shri Naresh Panwar S/O Shri Udain Singh on 25 August, 2013
IN THE COURT OF SH PREM KUMAR BARTHWAL,
PO:MACT (SE01), SAKET COURTS, NEW DELHI
SUIT No. : 322/08
UNIQUE CASE ID: 02403C0888182008
1. Smt. Anita Devi W/o Late Shri Shiv Mohan
2. Avinash Kumar S/o Late Shri Shiv Mohan
3. Akash Kumar S/o Late Shri Shiv Mohan
4. Arti Kumari D/o Late Shri Shiv Mohan
5. Poonam Kumari D/o Late Shri Shiv Mohan
6. Pawan Kumar S/o Late Shri Shiv Mohan
All R/o L9, Dakshinpuri, PS Ambedkar Nagar,
New Delhi - 110 062
(Petitioner nos. 2 to 6 being minors are represented
through their mother/natural guardian i.e. petitioner no. 1)
.......PETITIONERS
VERSUS
1. Shri Naresh Panwar S/o Shri Udain Singh,
R/o 129C, Shahpur Jat, New Delhi.
2. Union of India, through Under Secretary/Secretary,
Ministry of Heavy Industries & Public Enterprises,
Udyog Bhawan, New Delhi.
3. Smt. Parwati W/o Shri Sangatha Prasad
Both R/o L9, Dakshinpuri, PS Ambedkar Nagar,
New Delhi - 110 062
.......RESPONDENTS
Suit No. 322/08 Page 1 of 15
Shri S.P. Paul, counsel for the petitioners Shri Sudhir Kumar, counsel for R2 Shri Birender Kumar, counsel for R3 Date of Institution of claim petition: 20.09.2008 Date on which the Award/judgment reserved: 24.08.2013 Date on which the Award/judgment pronounced: 25.08.2013 A W A R D:
1. This petition under Section 166 of the Motor Vehicle Act, 1988 was filed by the petitioners claiming compensation of Rs.
50,00,000/ for the fatal injuries sustained by Shri Shiv Mohan son of Shri Sanghatha Prasad in a road vehicular accident which took place on 23.08.2008 at about 06.30 AM at Lala Lajpat Rai Marg, Opposite Shamshan Ghat, Lodhi Road, New Delhi involving vehicle bearing registration no. DL4CNB0555 (Maruti Esteem Car), driven by respondent no. 1, Shri Naresh Panwar. The petitioner no. 1 is the widow and petitioner nos. 2 to 6 are the minor children of the deceased. Smt. Parwati who is the mother of the deceased, Shri Shiv Mohan has been arrayed as respondent no. 3 by the petitioners.
2. Notices of the petition were issued to the respondents. The respondent no. 1 has filed his written statement denying the Suit No. 322/08 Page 2 of 15 claim of the petitioners and contending that the unfortunate accident had taken place due to negligence and carelessness on part of the deceased, Shri Shiv Mohan. It is being further contended that at the time of the accident, R1 was driving the Maruti Esteem car bearing registration no. DL4CNB0555 at a moderate speed of 40 kmph and the deceased was trying to cross the road in most callous rash and negligent manner and the deceased had not followed any traffic rules and regulations and had suddenly come in front of the car driven by respondent no. 1. It has been further contended that the said car i.e. Maruti Esteem no. DL4CNB0555 is a government vehicle assigned to Under Secretary, Ministry of Heavy Industries & Public Enterprises, Udyog Bhawan, New Delhi and at the time of the accident, the respondent no. 1 was on government duty as a driver of Dr. Surajit Mitrao, Addl. Secretary, Department of Heavy Industries and that in case any compensation is awarded the same is to be recovered from Government of India. However, during the course of the proceedings, respondent no. 1 stopped participating in the enquiry proceedings and stopped appearing and he was therefore, proceeded exparte vide proceedings dated 19.08.2013. A written statement has also been filed on behalf of the respondent No. 2 through its counsel denying the claim of the petitioners and Suit No. 322/08 Page 3 of 15 contending that vehicle bearing registration no. DL4CNB0555 (Maruti EsteemVX) was purchased on 04.05.2006 and the same is in the name of Under Secretary, Ministry of Heavy Industries & Public Enterprises, Ministry of Heavy Industries and Public Enterprises, Government of India, Udyog Bhawan, New Delhi and that R1, Shri Naresh Panwar was on government duty on the date of accident. It is further contended that the respondent no. 1/driver had reported that he was driving the vehicle at a moderate speed at the time of the accident and that the unfortunate accident had taken place due to negligence on part of the deceased himself. A written statement has also been filed on behalf of R3 averring that she is also entitled for compensation as the parents of the deceased were old and infirm and has no source of income. It has been further averred that the parents of the deceased had also spent money on the treatment and funeral rites of the deceased. Initially, the father of the deceased had also been arrayed as a party but during the course of proceedings, the father of the deceased passed away on 30.04.2012 and the application for deleting the name of Shri Sangatha Prasad, father of the deceased, Shri Shiv Mohan was filed on behalf of the petitioners which was allowed vide proceedings dated 24.01.2013.
Suit No. 322/08 Page 4 of 15
3. From the pleadings of the parties, following issues were framed for consideration :
1. Whether the deceased suffered fatal injuries in an accident which took place on 23.08.2008 at about 06.30 AM involving Maruti Esteem bearing no. DL4CNB0555 driven by respondent no. 1, owned by respondent no. 2?
2. Whether the petitioners and respondent no. 3 are entitled for any compensation? If so, to what amount and from whom?
3. Relief
4. The petitioners in support of their case have got examined two witnesses namely, Smt. Anita Devi, wife of the deceased, Shri Shiv Mohan has been got examined as PW1 and SI Shahabuddin, No. 3350D, PS Kalkaji, New Delhi has been got examined as PW2. The learned counsel for the petitioners had closed evidence on behalf of the petitioners vide his separate statement recorded on 16.07.2013. On behalf of the respondent no. 2, Shri Ajay Kumar Gaur son of Late Shri G.S. Gaur, Under Secretary, Department of Heavy Industry has been got examined as Suit No. 322/08 Page 5 of 15 R2W1 and the learned counsel for R2 had closed the evidence on behalf of the said respondent vide his separate statement recorded on 19.08.2013.
5. I have heard the learned counsels for the parties and considered the testimonies of the witnesses and documents filed on record and my findings to the issues are as under : ISSUE NO. 1
6. Since the present petition is under Section 166 of M V Act, it was the bounden duty of the petitioners to prove that the respondent No. 1 was rash and negligent in driving the vehicle at the time of accident. To prove this issue, the learned counsel for the petitioners has relied upon the statement of PW2, SI Shahabuddin, No. 3350D, PS Kalkaji, New Delhi who has deposed that he was the investigating officer of case FIR No. 285/08, PS Hazrat Nizamuddin. PW2, SI Shahabuddin has averred that the postmortem of the deceased, Shri Shiv Mohan was conducted in Trauma Centre, AIIMS, New Delhi and that after completion of the the investigations in FIR No. 285/08, PS Hazrat Nizamuddin, a final report/charge sheet was filed against the R1/driver, Shri Naresh Panwar son of Shri Udai Singh R/o House No. 129C, Shahpur Jat, New Delhi in the court of Shri Naveen Arora, the then Ld. ACMM, Suit No. 322/08 Page 6 of 15 Patiala House Courts, New Delhi. PW2 has categorically averred that the offending vehicle in FIR No. 285/08, PS Hazrat Nizamuddin was a Maruti Esteem Car bearing registration no. DL4CNB0555 and the said vehicle was seized by the IO/HC Mohan Singh vide seizure memo, Ex.PW2/A. The learned counsel for R2 has argued that the registration number of the offending vehicle had been mentioned as DL1CNB0555 and hence the identity of the offending vehicle is in dispute. However, PW2, SI Shahbuddin has categorically averred on 16.07.2013 that the registration number of the offending vehicle had been inadvertently recorded initially as DL1CNB0555 but the actual number of the offending car was DL4CNB0555. The respondents have not crossexamined PW2, SI Shahbuddin despite opportunity having been accorded to them and the testimony of PW2 has remained uncontroverted and unchallenged. Perusal of the final report/charge sheet, Ex.PW1/1 also reveals that the mistake in recording the registration number of the offending vehicle had been subsequently rectified during the course of investigations of FIR No. 285/08, PS Hazrat Nizamuddin. The respondent nos. 1 and 2 have also not challenged the identity of the car involved in this accident in their written statements and instead had taken a defence that the accident had taken place due Suit No. 322/08 Page 7 of 15 to negligence on part of the deceased. However, the respondent No. 1 has not cared to appear in the witness box to explain his version regarding the manner in which the accident had taken place and has not cared to explain circumstances regarding his involvement in FIR No. 285/08, PS Hazrat Nizamuddin and the same compels this Tribunal to draw adverse inference against him. The statements of PW2, SI Shahabuddin and PW1, Smt. Anita Devi who is the widow of the deceased also stand corroborated by certified copy of final report U/s 173 Cr.P.C. in respect of FIR No. 285/08, PS Hazrat Nizamuddin, Ex.PW1/1 (Colly). Certified copies of FIR No. 285/08, PS Hazrat Nizamuddin, Ex.PW1/2; site plan, Ex.PW1/3; mechanical inspection report of the offending vehicle, Ex.PW1/4; arrest memo of R1/driver, Ex.PW1/8; certified copies of RC of the offending vehicle and superdginama of the offending vehicle, Ex.PW1/7 have also been filed on record. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court in case titled in Basant Kaur & Ors. Vs. Chattar Pal Singh & Ors., 2003 ACJ 369 M.P.(DB) wherein it has been held that registration of a criminal case against the driver of the offending vehicle is enough to record the finding that the driver of offending vehicle is responsible for Suit No. 322/08 Page 8 of 15 causing the accident. Further it has been held in catena of cases that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. I am also being guided by the Judgment of Hon'ble High Court of Delhi in "National Insurance Company Limited Vs. Pushpa Rana" (ACJ 287) wherein it was held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under Section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It is also a settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
7. In view of the above discussions and particularly in view of no controverting evidence on behalf of the respondent No. Suit No. 322/08 Page 9 of 15 1/driver of the offending vehicle, it stands proved on record that Shri Shiv Mohan had suffered fatal injuries due to rash and negligent driving of car bearing No. DL4CNB0555 by respondent No. 1 on 23.08.2008. Accordingly, the issue No. 1 is decided in favour of the petitioners and against the respondents no. 1 and 2. ISSUE NO. 2 (COMPENSATION):
8. The learned counsel for the petitioners has averred that the deceased, Shri Shiv Mohan was self employed as an auto driver and that he was earning about Rs.15,000/ per month at the time of his fatal accident. However, the petitioners have not filed on record any document regarding the monthly earnings of the deceased.
PW1, Smt. Anita Devi has also admitted during her cross examination on 06.04.2013 that there is no document filed on record regarding the earnings of her deceased husband. She also averred that she does not have any document regarding the driving licence of her deceased husband and averred that the said driving licence was lost in the accident. Thus, the petitioners have not been able to establish/prove on record that the deceased was having a monthly income of Rs.15,000/. No document regarding monthly earnings or educational qualifications of the deceased has been filed or proved on record. In the absence of any cogent documentary evidence in Suit No. 322/08 Page 10 of 15 respect of monthly income of the deceased at the time of accident, the same can be taken to be the minimum wage of an unskilled workman which was Rs.3,683/ on the date of accident (23.08.2008). The Hon'ble Supreme Court in case titled "Santosh Devi Vs National Insurance Company Ltd and Others" in Civil Appeal No. 3723 of 2012 passed on 23.04.2012 has observed as under : "In our view, it will be naive to say that the wages or total emoluments/income of a person who is selfemployed or who is employed on a fixed salary without provision for annual increment etc, would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor.
As a matter of fact, the effect of rise in prices which directly impacts the cost of living in minimal on the rich and maximum on those who are selfemployed or who get fixed income/ emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families."
It has also been observed by the Hon'ble Supreme Court that : Suit No. 322/08 Page 11 of 15 "Although, the wages/ income of the those employed unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Govt. employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are selfemployed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a vies to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour........ It would be reasonable to say that a person who is selfemployed or is engaged on fixed wages will also get 30 percent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."
9. Being guided by the judgment above, an amount of 30% is added in the income of the deceased and the annual income of the deceased, for the purpose of assessment of dependency is taken to be Rs.4,787.90 (Rs.3,683/ plus Rs.1,104.90). It can very well be presumed in terms of the judgment of the Hon'ble Supreme Court of India in case titled "Sarla Verma Vs Delhi Transport Suit No. 322/08 Page 12 of 15 Corporation" [2009 (6) Scale 129] that the deceased might have been spending onefifth (1/5th) of Rs.4,787.90 on his personal expenses as the deceased had left behind his widow, five minor children and aged mother as dependents. Therefore, after deducting onefourth (1/5th) towards personal expenses, the loss of dependency comes out to be (Rs.4,787.90 minus Rs.957.50) = Rs. 3,830.40 which is rounded off to Rs.3,831/. As per copy of election identity card of the deceased, Ex.PW1/9, he was 25 years old as on 01.01.1994. Thus, the deceased was aged about 39 years at the time of the accident (23.08.2008). The appropriate multiplier applicable for the age group of 3640 is 15 as per Sarla Verma's judgment (Supra) and the total loss of dependency comes out to (Rs.3,831/ X 12 X 15) = Rs.6,89,580/. I also award Rs.25,000/ towards funeral expenses, Rs.1,00,000/ towards loss of love and affection and loss of care and guidance of the minor children, Rs. 1,00,000/ towards loss of consortium and Rs.10,000/ towards loss of estate. In total, I hereby award a sum of Rs.9,24,580/ (Rupees Nine Lac Twenty Four Thousand Five Hundred and Eighty Only) in favour of the petitioners and against the respondents. In view of the above discussions issue No. 2 is decided in favour of the petitioners as well as R3 and against the respondent nos. 1 and 2. Suit No. 322/08 Page 13 of 15 RELIEF:
10. I award a sum of Rs.9,24,580/ (Rupees Nine Lac Twenty Four Thousand Five Hundred and Eighty Only) as compensation with interest at the rate of 7.5% per annum including interim award, if any, from the date of filing the petition i.e. 20.09.2008 till the notice under Order 21 Rule 1 CPC is given by the respondent nos. 1 and 2, in favour of the petitioners and against the respondents on account of their liability being joint and several. Out of the awarded amount, petitioner no. 1 shall have share of 35% and petitioners no. 2 to 6 shall have a share of 10% each and respondent no. 3 shall have share of 15% along with proportionate interest. Acting on the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S. Susamma Thomas (1994) 2 SCC 176 and in order to avoid the money being frittered away, 50% share of petitioner No. 1 shall be kept in FDR in a nationalized bank hereinafter named for a period of 7 years. The entire share of petitioners No. 2 to 6 shall be kept in FDR in a nationalized bank hereinafter named for a period till they attain the age of majority. No loan or advance shall be allowed against the said FDRs but the petitioner no. 1 is permitted to withdraw the amount of interest Suit No. 322/08 Page 14 of 15 monthly/quarterly on the FDRs.
A PPORTIONMENT OF LIABILITY:
11. The respondent No. 2, being the owner of the offending vehicle at the time of accident, is jointly and severally liable with the respondent no. 1 who is the driver of the offending vehicle.
Accordingly, the respondent no. 2 is directed to deposit the award amount with this Tribunal in the form of crosscheques to be drawn in the names of the petitioners and R3 within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
12. The copy of this award be given to the respondents as well as to the petitioners free of cost. The amount which is ordered to be retained in the FDRs shall not be released until the FDRs are matured.
13. The petition stands allowed and disposed off. Accordingly, the inquiry file be consigned to Record Room after completion of necessary formalities.
Announced in the open (PREM KUMAR BARTHWAL)
Court on 24.08.2013 PO: MACT, SE01, NEW DELHI
Suit No. 322/08 Page 15 of 15