Delhi District Court
Sh. Rajesh S/O Sh. Harpal vs Sh. Rajinder Kumar S/O Sh. Padam Chand on 17 February, 2010
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IN THE COURT OF SHRI GURVINDER PAL SINGH
JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL(WEST)
TIS HAZARI COURTS,DELHI
(Suit No. 229/08)
1. Sh. Rajesh s/o Sh. Harpal
2. Smt. Anju Bala d/o Smt. Ram Kali
3. Sh. Ghanshyam s/o Smt. Ram Kali
4. Ms. Poonam d/o Smt. Ram Kali
5. Baby Kusum d/o Smt. Ram Kali
6. Master Jagmohan s/o Smt. Ram Kali
All R/o A-59, Shri Chander Park,
Matiayala, Uttam Nagar, New Delhi
(Petitioners No. 5 & 6 are minor and they are being
represented through petitioner No. 1 being father
& natural guardian)
........PETITIONERS
VERSUS
1. Sh. Rajinder Kumar s/o Sh. Padam Chand
R/o RZ-25, Gali No.6, West Sagarpur, New Delhi(Driver)
2. Sh. Prakash Veer Singh s/o Sh. Ishwar Singh
R/o WZ-1390/2, Nangal Ray, New Delhi(owner)
3. Oriental Insurance Co. Ltd.
6th Floor, Shahpur Tower, C-58, Community Centre,
Janak Puri, New Delhi-58. (Insurer)
....... RESPONDENTS
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Date of filing of the petition : 26/09/08
When reserved for judgment : 02/02/10
Date of final award : 17/02/10
JUDGMENT / AWARD
Petitioners have claimed compensation of Rs. 15,00,000/- (
Rupees Fifteen Lacs Only) vide claim petition u/s 166 & 140 of the Motor Vehicles Act,1988 for fatal injuries sustained by Smt. Ram Kali (now deceased) on 14/08/08 at 6.15 a.m. while she was pillion rider on motor cycle No. DL4SBJ- 0730, driven by her husband, petitioner Sh. Rajesh at opposite C-3A/286, Janak Puri, Pankha Road, New Delhi, when Bus No. DL-1PB-4181, driven by respondent No.1 rashly and negligently in high speed, hit their motor cycle causing the fall of petitioner and her husband on road.
2. Respondent No.1, 2 and 3 are the driver, owner and insurer respectively of the offending vehicle.
3. Initially Smt. Ramkali herself had filed the petition for claiming compensation for her received injuries. During the course of her treatment, since Smt. Ram Kali expired, having succumbed to injuries, on an application 3 u/o 6 R 17 CPC r/w section 151 CPC of legal heirs of Smt. Ram Kali, the amendment to claim petition was allowed vide order dated 27/01/09.
4. All the respondents filed the written statements and denied the claim of the petitioners.
5. Respondent No.3, however, admitted the fact that vehicle Bus No. bearing No. DL-1PB-4181 was insured with it vide Policy No. 215500/31/2009/1298 valid from 29/06/08 to 28/06/09.
6. Vide order dated 21/07/09 of of this Tribunal, petitioners No. 1,4,5 & 6 were awarded interim compensation of Rs. 50,000/- from the date of filing of the petition till its realisation. Also vide orders dated 21/07/09 of this Tribunal,following issues were framed:-
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1. Whether the deceased Smt Ram Kali expired on 23/10/08 due to fatal injuries sustained on 14/08/08 at about 6.15 hrs. at opposite C-3A/286, Janak Puri, Pankha Road, Delhi due to rash and negligent driving of respondent No.1 Rajinder Kumar while driving vehicle bus bearing registration No. DL 1P-4181?
2. Whether the petitioners are entitled to any compensation? If so, to what amount and from whom?
3. Relief.
7. Petitioner No.1 as PW-1 is the sole examined petitioner witness.
8. Sh. V. D. Talwar is the sole respondent witness examined by insurer as R3W1.
9. I have heard submissions of Ld. Counsels for the parties, perused the record and given my thoughts to the contentions put forth. My issue-wise findings are as under:-
ISSUE NO.1 5
10. PW-1 reiterated the averments of the claim petition. He testified that on the fateful morning, he was driving the motor cycle No. DL-4S-BJ- 0730 where his wife was pillion rider and when they reached at opposite C- 3A/286, Janak Puri, Pankha Road, New Delhi, then Bus No. DL1PB-4181, driven by respondent No.1 rashly and negligently hit their motor cycle, causing their fall on the road. Petitioner and Smt. Ram Kali were removed to DDU Hospital and from where they were shifted to Mata Chanan Devi Hospital where the deceased had received treatment till 23/10/08 and she finally succumbed to her injuries.
11. Neither the respondent No.1 stepped into the witness box to testify in contrary to the version of PW-1 nor is there any other evidence on record to disbelieve or discredit the version of PW-1, either in toto or in particular.
12. A driver of a mechanically propelled heavy vehicle is under bounden duty to observe necessary caution for avoiding striking other vehicles, persons, the users of the road ahead. Having failed to observe such necessary care and caution, being oblivious of said duty, respondent 6 No.1 was berserk locomotion since he struck the vehicle of the deceased at the spot causing her fatal injuries. Respondent No.1 was thus negligent.
13. The version of PW-1 is lent corroboration by the version emanating from the attested copy of the charge-sheet, Ex. C-1(colly.) of case FIR no. 235/08 u/s 279/337/304-A IPC, in terms of which the investigating agency opined that the respondent No.1 has committed the said offences and was responsible for the death of the deceased Smt. Ram Kali caused by his rash and negligent driving.
14. As per the copy of the post mortem report on the body of the deceased, the cause of death has been opined to be ' Septicemia developed after Road Traffic accident'.
15. Above discussion leads me to the conclusion that petitioners have been able to prove that deceased Smt. Ram Kali had sustained fatal injuries due to said rash and negligent driving on the part of respondent No.1. Accordingly, issue No.1 is decided in favour of the petitioners and against the 7 respondents.
ISSUE NO.2
16. The appropriate method of calculating the compensation in fatal cases is multiplier method. In catena of decisions, the Hon'ble Supreme Court of India had held that in India the multiplier method is appropriate for calculation of compensation. It was so enunciated by their Lordship Wright in "Davies Vs. Powell Duffregn Associated Collieries Ltd" reported in 1942 AC601, that the appropriate method to calculate compensation is the multiplier method. In the cases of 'General Manager, Kerela State Road Transport Corporation, Trivendram Vs Susamma Thomas (Mrs.) & Ors', (1994) 2 SCC 176; ( 2 ) 'Managing Director, TNSTC Ltd. Vs K.I. Bindu & Ors'. (2005) 8SCC 473; (3) 'Gobald Motor Service Ltd. & Anr Vs RMK Veluswami & Ors', AIR 1962 SC 1 and of late, in the case of 'Syed Basheer Ahamad & Ors. V Mohd Jameel and Anr'. in Civil Appeal No. 10 of 2009, decided by the Division Bench of the Hon'ble Supreme Court on 06/01/2009, also in the case of ' Smt. Sarla Verma & ors Vs. Delhi Transport Corporation & Anr, reported in III (2009) ACC 708 (SC), decided by the Division Bench of the Hon'ble Supreme Court on 15/04/09, 8 the payment of compensation in lump-sum to legal representatives of deceased by multiplier method has been approved.
17. Starting point for calculating amount of compensation to be paid to dependents of deceased in a motor accident claim is the amount of monthly income which the deceased was earning; then there is an estimate of what was required for his personal and living expenses. The balance will generally be turned into lump sum by taking certain number of years of purchase. The choice of multiplier is ascertained by the age of the deceased or that of the claimant whichever is higher.
THE MULTIPLICAND
18. In terms of ration card, copy Ex. PW1/48, the year of birth of the deceased was 1965. Accordingly the deceased was of age 43 years as on the date of accident, though her age is mentioned 44 years in post mortem report, I take the age of the deceased as 43 years accordingly.
19. PW-1, testified that his wife, deceased was doing iron press work, earning Rs. 4000/- per month. No document of qualification or earnings of 9 deceased has been filed nor proved by the petitioners.
20. In absence of any cogent evidence, documentary or otherwise, to establish the earnings of the deceased, the monthly income of the deceased is determined on the basis of the minimum wages notified under the Minimum Wages Act by the Delhi Government in the category of an unskilled person, which was Rs.3683/- on the day of accident.
21. Noting that to neutralize increase in cost of living and price index, minimum wages are increased from time- to-time. Minimum wages tend to increase by 100% every 10 years.
22. It is now well settled that while estimating future loss of income, the Court has to take into account future prospects of the injured/deceased. [ See (1) K. Narsimha Murthi V. The Manager, Oriental Insurance Co. Ltd. & Anr.,reported in 2004 ACJ 1109; (2)Oriental Insurance Co. Ltd. Vs. Vijay Kumar Mittal, reported in III(2007)ACC 676 & Santosha Devi V. Abdul Kareem & Ors, in MAC Appeal No. 440/2009, decided on 08/10/09 by Hon'ble Mr Justice J. R. Midha].
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23. Thus, Tribunal has to consider future increase in minimum wage while awarding compensation to the dependents of deceased.
24. Benefit of future increase in the income of the deceased is to be given. Thus mean average income of the deceased is determined as Rs. 5524/50 p. per month [{minimum wage+ double the minimum wage} divided by 2] for purpose of computation of compensation in this case.
25. As per the statement of petitioner No.1 dated 21/07/09, his eldest daughter Mrs. Anju Bala, petitioner No.2 was married while his eldest son, petitioner No.3 Sh. Ghanshyam was married, working and earning. Accordingly, petitioner No.4, the unmarried daughter and petitioners No. 5 & 6, minor children were dependents on the earnings of the deceased lady while her husband, petitioner No.1 was also doing iron press work and earning.
26. In terms of law laid by the Apex Court in the case of Smt. Sarla 11 Verma & Ors (Supra), since there were three dependents on the earnings of the deceased, the deduction towards personal and living expenses of the deceased, would be one-third (1/3rd ), out of her monthly earnings. The deduction towards the personal and living expenses of the deceased out of her said monthly income would be Rs. 1841/50 p.( Rs. 5524/50 p. divided by
3). The loss of monthly dependency to the legal representatives of the deceased accordingly is Rs. 3683/- (Rs. 5524/50 p. minus Rs. 1841/50 p.). MULTIPLIER
27. As per ration card, Ex.PW1/48, the year of birth of PW-1 was 1963, so he was of age 45 years accordingly as on the date of accident.
28. Considering the respective ages of the deceased and her husband, PW-1, in terms of the law laid by the Apex Court in case of 'Sarla Verma & Ors (Supra), the multiplier of 14(for age group of 41 to 45 years) is being adopted in this case accordingly.
29. The total loss of dependency of the dependants on income of deceased would accordingly be Rs. 6,18,744/- (Rs. 3683/-x 12x 14). COMPENSATION FOR LOSS OF CONSORTIUM 12
30. In terms of law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra), the claimant, the husband of deceased, petitioner No.1 is entitled to sum of Rs. 10,000/- under the head of loss of consortium. COMPENSATION FOR LOSS OF ESTATE
31. In view of the law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra) the claimants/petitioners are entitled to Rs. 10,000/- as loss of estate.
COMPENSATION TOWARDS FUNERAL EXPENSES
32. In view of the law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra) , the claimants are entitled to Rs. 5,000/- under this head.
COMPENSATION FOR LOVE AND AFFECTION.
33. No amount would suffice to compensate the loss of love and affection to petitioners. Yet, relying upon the pronouncements of Hon'ble Mr. Justice J. R. Midha in case of ' Rajesh Tyagi & ors Vs. Jaibir Singh & Ors as FAO No. 842/2003, orders dated 08/05/09, the claimants, six in number, are entitled to sum of Rs. 10,000/- each i.e., totalling Rs. 60,000/- as loss of love and affection.
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COMPENSATION FOR THE EXPENSES INCURRED ON MEDICAL TREATMENT
34. In terms of the bills of the medical treatment received by the deceased after the accident and before her expiry , contained in Ex. PW1/2 to PW1/38, the money spent on such expenses incurred was Rs. 7,308/ 39 p. rounded off to Rs. 7,308/-.(totalling done by Civil Nazir Sh. Kulbhushan Khurana as per directions). The petitioners are, therefore, entitled to sum of Rs. 7,308/- as compensation for medical expenses incurred on treatment of the deceased pursuant to the accident till her death.
35. In view of the above discussion, the total compensation to which the petitioners are entitled to comes as under:-
1. Compensation for Loss of dependency Rs. 6,18,744/-
2. Compensation for loss of consortium Rs. 10,000/-
3. Compensation for loss of estate Rs. 10,000/-
4. Compensation for funeral expenses Rs. 5,000/-
5. Compensation for loss of love and affection Rs. 60,000/-
6. Compensation for the expenses incurred on medical treatment of deceased before her death Rs. 7,308/-
_____________ Rs. 7,11,052/-
Less interim compensation Rs. 50,000/-
__________________
Total payable sum Rs. 6,61,052/-
___________________
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36. In view of the above discussions, issue No.2 is decided in favour of the petitioners and against the respondents. Petitioners are thus, entitled to Rs. 6,61,052/- as compensation alongwith interest 7.5% per annum from the date of filing of the petition till its realization from the respondents. LIABILITY
37. R3W1 in his affidavit, Ex. R3W1/A stated of the insured was neither having the valid permit of offending vehicle nor having produced the same on demand of insurer, so committed breach of policy, Ex. R3W1/1 and thus insurer was not liable. In the cross-examination, R3W1 was shown copy of permit, Ex. R3W1/R2/1 of offending vehicle by counsel for respondents No.1 & 2, which was valid from 22/05/08 till 20/09/08 including date of accident. Similar copy of permit was filed with Accident Information Report in form No. 54. Said document is presumed to be true as per Rules, unless proved to contrary. R3W1 admitted having neither demanded from police such copy of permit nor verified it from authority concerned. Insurer having failed to prove of insured having committed any breach of policy, is liable tp pay compensation sum to claimants.
15Relief
38. In view of the aforesaid discussions, it is hereby held that petitioners are entitled to a sum of Rs. 6,61,052/- alongwith interest @ 7.5% per annum from the date of filing of the present petition till its realization from the respondents,payable by the insurer/respondent No.3, Oriental Insurance Co. Ltd.
APPORTIONMENT OF COMPENSATION
1. Sh. Rajesh (Husband) Rs. 1,57,052/-
2. Mrs. Anju Bala (married daughter) (compensation for loss of love & affection and loss of estate) Rs. 12,000/-
3. Sh. Ghanshyam (compensation for loss of love & affectionand loss of estate) Rs. 12,000/-
4. Ms. Poonam (daughter) Rs. 1,60,000/-
5. Ms. Kusum (daughter, now major) Rs. 1,60,000/-
6. Sh. Jagmohan(son) Rs. 1,60,000/-
39. Since the amount awarded should not be frittered away by beneficiaries owing to the ignorance, illiteracy etc., the Hon'ble Supreme Court of India in a case titled 'G. M. Kerala State Road Transport Corporation Vs. Susamma Thomas' reported in 1994(2) SCC 176, has laid guidelines pronouncing that in a case of compensation for death, it is 16 appropriate that Tribunals do keep in mind the principles enunciated by this court in 'Union Carbide Corporation Vs. Union of India', 1991(4) SCC 584, in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation. Guidelines inter alia included of investment of share of the claimants in FDRs in nationalized banks with conditions that bank will not permit any loan or advance on the fixed deposits and interest on the amount invested is paid monthly / periodically directly to the claimant and such investment may be made in more than one fixed deposit. In case of any exigency, claimants are at liberty to apply to Tribunal for withdrawal of such investment.
40. In terms thereof, 50% of the award amount of petitioners No.1,4 &5 be invested in shape of two FDRs in the name of the said claimants / petitioners for 7 years in State Bank of India. Entire award sum of minor petitioner No.6 be deposited in FDR in SBI, Tis Hazari till he attains the age of majority. The FDRs shall have no facility of loan or advance. However, petitioners/claimants are at liberty to take steps for premature encashment in case of exigency, as per law laid before this Tribunal. Interest can be 17 withdrawn monthly by petitioners, the minor through guardian.
41. State Bank of India,Tis Hazari, has agreed to open Special Fixed Deposit Account for the victims of road accidents.
42. Aforesaid fixed deposits are to be made by State Bank of India, Tis Hazari in the following manner:-
(1) The State Bank of India,Tis Hazari, shall open separate Savings Accounts in the name of claimants and the entire interest on the aforesaid fixed deposits be credited in the said accounts. The fixed deposits shall be automatically renewed till the period prescribed by the court. (2) The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Saving Accounts. (3) Withdrawal from the aforesaid account shall be permitted to the claimants after due verification and the Bank shall issue photo identity Card /Pass Book with attested photographs to claim to facilitate their identity. Minor petitioner can so withdraw through guardian 18 (4) No cheque book be issued to the claimants without the permission of this Court.
(5) Half yearly statement of accounts be filed by the Bank in this Court.
(6) The original FDRs shall be retained by the Bank in the Safe custody. However, the original Pass Books shall be given to the claimants alongwith the photocopy of the FDRs. (7) The original Fixed Deposit Receipts shall be handed over to the claimants at the end of the fixed deposit period. (8) No loan, advance or withdrawal shall be allowed on the said FDRs without the permission of this Court. (9) On the request of the claimants, the Bank shall transfer the Saving Account to any other branch of State Bank of India according to the convenience of the claimants.
43. Respondents No.3 is directed to directly deposit the award sum with SBI< Tis Hazari within 30 days through its nodal officer Mr. H.S. Rawat, Relationship Manager, Tis Hazari Branch (Mb: 09717044322) and the 19 Manager concerned of SBI, Tis Hazari Court to keep the specified amount aforeaid in fixed deposit in terms of the award and release the balance amount by transferring the same to the Saving Bank Account of the victim(s)/ claimant(s). Insurance Company to also file proof of deposit of award sum, also within said period. Manager SBI, Tis Hazari to also furnish compliance report within 15 days of deposit of award sum.
File be consigned to Record Room.
Announced in open court (Gurvinder Pal Singh)
today i.e. 17/02/10 Judge, MACT(West)
Delhi.