Delhi District Court
Smt. Surinder Kaur Wd/O Late Sh. Sarvjit ... vs Sh. Daya Ram S/O Sh. Bool Singh on 15 February, 2010
1
IN THE COURT OF SHRI GURVINDER PAL SINGH
JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL(WEST)
TIS HAZARI COURTS,DELHI
(Suit No. 108/08)
1. Smt. Surinder Kaur wd/o Late Sh. Sarvjit Singh
2. Sh. Harvinder Singh s/o Late Sh. Sarvjit Singh
3. Sh. Mandeep Singh s/o Late Sh. Sarvjit Singh
4. Ms. Jasvinder Kaur d/o Late Sh Sarvjit Singh
All r/o D-6-B, DDA Janta Flats, Shivaji Enclave,
Raghubir Nagar, New Delhi 110027.
...... Petitioners
VERSUS
1. Sh. Daya Ram s/o Sh. Bool Singh
R/o V & P.O. Bilaspur,
District Gurgoan (Haryana) (Driver)
2. Sh. Beer Singh s/o Sh. Pat Ram,
R/o V & P.O. Bhivadi, Distt. Alwar(Rajasthan) (owner)
3. The New India Assurance Co. Ltd.
8th Floor, Kanchanjang Building,
Bara Khamba Road, New Delhi(Insurer)
....... RESPONDENTS
2
Date of filing of the petition : 10/10/06 When reserved for judgment : 01/02/10 Date of final judgment/ award : 15/02/10 JUDGMENT / AWARD
Petitioners have claimed compensation of Rs. 20,00,000/-( Rupees Twenty Lacs) vide claim petition u/s 166 & 140 of the Motor Vehicles Act,1988 for fatal injuries sustained by Sh. Sarvjit Singh on 26/04/06 at about 4 p.m at Main Service Road towards Raghubir Nagar, New Delhi while he was on his scooter No. DL-8S-H-9020 when Tempo No. HR-47-C-1709, driven by respondent No.1 came from Ring Road side and hit the scooter from back side, causing the fall of deceased, dragged him and the deceased came under the front wheel of the tempo.
2. Respondent No.1, 2 and 3 are the driver, owner and insurer respectively of the offending vehicle.
3. Respondents were summoned and served.
4. Respondents No.1 & 2 were served vide publication. 3
5. No written statement was filed by respondents No.1 & 2.
6. Written statement was filed by the respondent No.3 denying the claim of the petitioner. It however, admitted the fact that vehicle No. bearing No. HR-47-C 1709 was insured with it vide Policy No. 330603/31/05/01/0009446 valid from 07/02/06 to 06/02/07.
7. Vide order dated 28/04/09 of this Tribunal, petitioners No. 1,3 & 4 were awarded awarded interim compensation of Rs. 40,000/-, Rs. 5000/- and Rs. 5000/- respectively alongwith the interest @ 7.5 % per annum from the date of filing of the petition till its realisation. Also vide orders dated 28/04/09 of this Tribunal, following issues were framed:-
1. Whether the deceased Sh. Sarvjit Singh had sustained fatal injuries on 26/04/06 at about 04.00 p.m at main service road towards Raghubir Nagar, Delhi due to rash and negligent driving of respondent No.1, Sh. Daya Ram while driving vehicle tempo bearing registration No. HR-47C-1709?
2. Whether the petitioners are entitled to any compensation? If so, to what amount and from whom?4
3. Relief.
8. Petitioner No.1 as PW-1 and Sh. Avtar Singh as PW-2 are the examined petitioner's witnesses.
9. Sh. Rajender Singh as R3W1 and Sh. S. C. Mahajan as R3W2 are the examined respondent/ insurer witnesses.
10. 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
11. PW-2 testified that he was the eye witness of the occurrence. On the fateful evening, he was present opposite Khetarpal Nursing Home and saw his uncle, the deceased Sh. Saravjeet Singh coming on scooter No. DL-
8S-H-9020 from Ring Side road at slow speed and correct side of the road. When the deceased took a turn near the Shivaji College , at that point of time from the Ring Rod side, one Tempo bearing No. HR-47-C-1709, driven by respondent No.1 in rash and negligent came and hit the scooter of the 5 deceased from back side. The consequence of the impact was that the deceased fell down and came under the wheel of the aforesaid tempo. The respondent No.1 after hitting, dragged the deceased for a considerable distance. The deceased was removed to DDU Hospital where he was declared brought dead.
12. Neither the respondent No.1 stepped into the witness box to testify in contrary to the version of PW-2 nor is there any other evidence on record to disbelieve or discredit the version of PW-2, either in toto or in particular.
13. A driver of a mechanically propelled 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 No.1 was berserk locomotion since he struck the vehicle of the deceased at the spot causing him fatal injuries. Respondent No.1 was thus negligent. 6
14. The version of petitioner is lent corroboration by the certified copy of the charge-sheet, Ex. C-1 of case FIR No. 407/06 u/s 279/304-A IPC, P.S. Rajouri Garden, in terms of which the investigating agency concluded the investigation, opining the commission of said offences by respondent No.1 and he being responsible for fatal injuries on the person of deceased.
15. As per the copy of the post mortem report on the body of the deceased, the cause of death has been opined to be ' shock and hemorrhage'
16. Above discussion leads me to the conclusion that petitioners have been able to prove that deceased Sh. Saravjit Singh 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 respondents.
ISSUE NO. 2
17. 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 7 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, the payment of compensation in lump-sum to legal representatives of deceased by multiplier method has been approved.
18. 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 8 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
19. In the claim petition the age of the deceased is mentioned as 40 years. In the post mortem report, the age of the deceased mentioned is 45 years. In the copy of the ration card of deceased, the year of birth of deceased is mentioned as 1960. In terms thereof, I take the age of deceased as 46 years as on the date of accident.
20. As per ration card Ex. P1, the age of the petitioner No.1 as on the date of accident was 41 years. As per the statement of petitioner No.1 on 28/04/09, the respective ages of petitioners No.2,3 and 4, as on the date of accident were 19 years; 17 years and 13 years respectively. On 28/04/09, the petitioner No.1 also deposed that as on the said date her elder son Sh. Harvinder Singh, petitioner No.2 was privately employed and was getting salary. Other children of the deceased were not employed and were students.
9
21. As per the petitioner No.1 and claim petition, the deceased was doing business under the name and style of B.M. Engineering Works and earning about Rs. 10,000/- per month after deducting all expenses, maintaining the current account with the bank. A copy of transactions of small period, of the bank account would in itself be not sufficient to infer or presume the monthly income of the deceased on record. The petitioners have not placed any document in respect of education, qualification or monthly earnings of the deceased. No copy of any income tax return has been placed on record nor even alleged nor proved by the petitioners.
22. In absence of any cogent evidence of monthly 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. 3271/- on the day of accident.
23 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.
10
24. It is now well settled that while estimating future loss of income, the Court has to take into account increase in minimum wages due to inflation and rise in price index. [ 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 and (3) Santosha Devi Vs. Abdul Kareem & ors, in MAC Appeal No.440/2009, decided on 08/10/09 by Hon'ble Mr. Justice J. R. Midha]
25. Thus, Tribunal has to consider future increase in minimum wages of deceased while awarding compensation to dependents of deceased.
26. 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. 4906/50 p. per month [{minimum wage+ double the minimum wage} divided by 2] for purpose of computation of compensation in this case. 11
27. Petitioners viz, wife of deceased, the two sons and the minor daughter of deceased were the dependents on the earnings of the deceased as on the date of accident. In terms of law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra), since there were four dependents on the earnings of the deceased, the deduction towards personal and living expenses of the deceased, would be one-fourth (1/4th ), out of his monthly earnings. The deduction towards the personal and living expenses of the deceased out of his said monthly income would be Rs. 1,226/62 p.( Rs. 4906/50 p. divided by 4). The loss of monthly dependency to the legal representatives of the deceased accordingly is Rs. 3679/88 p.(Rs. 4906/50 p minus Rs. 1,226/62 p.).
MULTIPLIER
28. In terms of law laid in the case of Smt. Sarla Verma(supra) and as per the age 46 years of the deceased, multiplier of 13 (for the age group 46 to 50 years )is being adopted in this case. The total loss of dependency of the petitioners would accordingly be Rs. 5,74,060/- (Rs. 3679/88 p. x 12x
13) (rounded off).
12COMPENSATION FOR LOSS OF CONSORTIUM
29. In terms of law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra), the claimant, the widow 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
30. In terms of law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra), the claimants are entitled to sum of Rs. 10,000/- under the head of loss of estate.
COMPENSATION TOWARDS FUNERAL EXPENSES
31. 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 LOSS OF LOVE AND AFFECTION.
32. 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, four in number, are entitled to sum of Rs. 10,000/- each i.e., totalling Rs. 40,000/- as loss of 13 love and affection.
33. 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. 5,74,060/-
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. 40,000/-
_____________ Rs. 6,39,060/-
Less Interim Compensation - Rs. 50,000/-
Balance payable sum ______________
Rs. 5,89,060/-
______________
LIABILITY
34. R3W1 Sh. Rajender Singh testified that he was a Clerk from the Regional Transport Authority, Rewari Haryana and has proved the copy of the extracts of the register of permit, Ex. R3W1/A. In terms thereof, the permit of vehicle No. HR-47-C 1709 was issued w.e.f 03/02/04 upto 02/02/09 which was a local permit valid only for State of Haryana having No. P47/R/2004.
14
35. R3W2 testified that since the accident took place in Delhi while insured/vehicle owner was not holding the valid permit of the alleged offending vehicle, the tempo for Delhi, so, the insured, owner of the vehicle had committd the breach of terms and conditions of the policy forming part of the documents, Ex. R3W/2 (colly.), whereby the vehicle was to be plied only in terms of the permit conditions. Even notice u/o 12 R 8 CPC through postal receipts, acknowledgment due card, received back, was served upon the owner, which documents are contained in Ex. R3W/2 (colly), but despite demand of the insurer, the insured, owner of vehicle had not appeared with the permit of the said vehicle, valid as on the date of accident in respect of Delhi State.
36. Respondent No.3, insurer accordingly has been able to prove that the vehicle owner/ respondent No.2 insured had plied the vehicle at the place of occurrence without any valid permit of Delhi and had accordingly committed the breach of the permit and condition of the policy.
37. In terms of law laid in the case of National Insurance Company Limited Vs. Challa Bharathama & Ors, reported in III(2004) ACC 292 (SC) 15 accordingly,let insurer pay the sum of compensation to the petitioners/ claimants and recover the same with interest at the same rate from the owner, respondent No.2 from this forum as per law without instituting or filing any separate civil suit. Insurer is granted recovery rights accordingly. '
38. In view of the aforesaid discussions, it is hereby held that petitioners are entitled to Rs. 5,89,060/- as compensation alongwith interest @ 7.5 % per annum from the date of filing of the petition till its realization from the respondents.
RELIEF
39. In view of the above discussion, I am of the opinion that the petitioners are entitled to a sum of Rs. 5,89,060/-as compensation with interest @ 7.5 % per annum from the date of filing of the petition till realisation from the respondents. payable by the respondent No.3,insurer. Insurance Company is granted recovery rights and is entitled to recover the award sum with interest at same rate till realization from respondent No.2 owner of the offending vehicle, after making the payment to the claimant/ petitioner, through this Tribunal without being required to file any separate 16 civil suit. Respondent No.3/Insurance Company is directed to deposit the cheques in the names of the petitioners within 30 days. APPORTIONMENT OF COMPENSATION
1.Smt. Surinder Kaur (wife) Rs. 2,89,060/-
2. Sh. Harvinder Singh(son) Rs. 75,000/-
3. Sh. Mandeep Singh (son) Rs. 75,000/-
4. Ms. Jasvinder Kaur (minor daughter) Rs. 1,50,000/- 40 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 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 17 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.
41. In terms thereof, out of the award amount, 50% amount of petitioner No. 1 be invested in shape of two FDRs of equal (almost) in the name of the said claimant/ petitioner for a period of 5 years in State Bank of India. Out of the award amount, 50% amount of petitioners No. 2 &,3 be invested in shape of one FDR each in the name of the said claimants/ petitioners for a period of 5 years in State Bank of India. Out of the award amount, the award amount of petitioner 4 be invested in shape of two FDRs of equal (almost) in State Bank of India in the name of the said claimant/ petitioner for a period of 3 years, later to majority or at the time of marriage, whatever is earlier. The FDRs shall have no facility of loan or advance. Petitioners can withdraw the interest monthly. Minor petitioner can so withdraw interest through her guardian mother, petitioner No.1. However, petitioners/claimants are at liberty to take steps for premature encashment in case of exigency, as per law laid before this Tribunal. 18
42. State Bank of India,Tis Hazari, has agreed to open Special Fixed Deposit Accounts for the victims of road accidents.
43. 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.
(2) The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Savings 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 Books with attested photographs to claim to facilitate their identity.
(4) No cheque book be issued to the claimants without the permission of this Court.19
(5) Half yearly statement of account 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 Book 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 Savings Account to any other branch of State Bank of India according to the convenience of the claimants.
44. Respondent No.3, The New India Assurance Co. Ltd. is directed to deposit the cheques in the names of the petitioners/claimants within 30 days.
File be consigned to Record Room.
Announced in open court (Gurvinder Pal Singh)
today i.e. 15/02/10 Judge, MACT(West)
Delhi.
20