Delhi District Court
Presiding Officer: Motor Accident ... vs Mukesh Kumar Paswan S/O Ram Sumar Paswan ... on 5 November, 2012
IN THE COURT OF MS. NIRJA BHATIA :
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL :
SOUTH-EAST DISTRICT : SAKET COURTS : NEW DELHI
Suit No.33/2010/2009
Unique Case ID No.02403C371452009
Fatal Case (Bachelor) :
1 Shri A.K.Puri (father)
2 Smt.Neelam Puri Wife of Shri A.K.Puri (mother)
Both residents of :
43, Bindal Road, Khurbura, Dehradun-248001, Uttrakhand.
......Petitioners
VERSUS
1 Mukesh Kumar Paswan S/o Ram Sumar Paswan (driver)
R/o Sher Garh, Mathura, UP.
2 Santo Kumar Son of Vishal Mandal (owner)
R/o A-49, Sita Puri-II, New Delhi.
3 Oriental Insurance Company Limited,
Issuing Office : DO-18, New Delhi.
.....Respondents
----------------------------
Date of institution : 28.07.2009
Date of reserving the judgment : 26.10.2012
Date of pronouncement : 05.11.2012
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Suit No.33/2010/2009 (A.K.Puri etc. Vs. Mukesh etc.) Page 1 of 16
AWARD
This judgment/award shall decide the question of awarding the compensation filed by way of present petition under Section 166 read with Section 140 of MV Act, 1988 as amended up to date (hereinafter referred as Act), arising out of a fatal case.
2 The relevant facts for decision are as under :
3 That on 8.3.2009 at about 2.30 AM, deceased Prateek Puri, a Flight Attendant with M/s.Jet Airways, was returning to home after dropping his friend at East of Kailash by Santro Car, bearing registration No.UA 07 D-5927 and when he reached at Nehru Place flyover, Kalkaji, he met with a road traffic accident caused by speeding trolla, bearing registration No.HR 38 D-3903, which was being plied rashly and negligently and after flouting the traffic norms, crossed over the divider of the flyover and collided head on with the Santro Car, resulting in sustaining the dangerous injuries to the deceased. By 3.00 AM, when he was removed to AIIMS Trauma Centre, he was declared dead. The MLC as well as the post-mortem report were drawn. 4 It is reported that the deceased was owning a pleasant personality and had attained many diplomas and was a multi talented person. After having graduate from Uttrakhand University in Commerce, he acquired skills in Computer Course, TV News Reading and Anchoring Course, Web Designing Course from NIIT whereafter he completed successfully his Cabin Crew Basic Course and was employed by Jet Airways. His manners and competence to work at Jet Airways was appreciated by the people who came in his contact as flight passengers and he received appreciation from them. It is reported that as his employer found his services useful, he was retained in services where initially he was employed as a Flight Steward, his services were confirmed and he was given rise and was re-designated as Flight Suit No.33/2010/2009 (A.K.Puri etc. Vs. Mukesh etc.) Page 2 of 16 Attendant. From the initial basic salary, his salary was also enhanced based upon his performance.
5 It is claimed that the petitioners, Shri A.K.Puri and Smt.Neelam Puri, both parents, were dependent upon the deceased as though they have another son, he is married and is living separately having no concern or connection with the petitioners, who were receiving all the help and assistance from the deceased who was receiving handsome salary besides other benefits and perks such as free travel ticket for the parents. It is claimed that had his life not lost in the traumatic accident, he would have remained alive uptil the age of 80-85 years as he was enjoying good health which was a pre-requisite even for his employment, held as one of the condition by the employer. It is claimed that in the circumstances above, the petitioners needs suitable compensation and the petitioners have estimated their loss for an amount of Rs.1 crore 55 lac along with interest.
6 Consequent to the petition being filed, the summons were issued to the respondents, who filed their replies. Though, the factum of insurance of the offending vehicle was admitted, the liability was denied. The interim award was passed on 22.4.2010.
7 The petitioners thereafter made efforts for settlement, however, the insurance company made an offer of Rs.3,77,766/- which was declared as inadequate. Enquiry, hence was proceeded with. Since, the respondents, driver/ owner stopped causing appearance and participating in the enquiry, they were proceeded ex-parte vide order dated 22.12.2010. The issues were also framed on the same day to the following extent :
1 Whether the deceased suffered fatal injuries in the accident which took place on 8.3.2009 at about 2.30 AM involving Truck Trolla, bearing No.HR 38 Suit No.33/2010/2009 (A.K.Puri etc. Vs. Mukesh etc.) Page 3 of 16 D-3903 due to rash and negligent driving of R-1, owned by R-2 and insured with R-3?
2 Whether the petitioners are liable for compensation. If so, what amount and against which of the respondents?
3 Relief.
8 Both the petitioners tendered their respective examination affidavits and were subjected to cross-examination. The counsel for the insurance company did not tender any evidence and closed the same. Significantly, in this case, as at the stage of offer and subsequently, the insurance company raised the doubts regarding the income from the flight allowance, the petitioners called Shri Bharat Bhushan Yadav, who initially did not appear willingly and was compelled to appear on the notice issued under Order 16 Rule 12 CPC. His examination/cross-examination was recorded whereafter the PE was closed. I have perused the written submissions filed and have heard the oral arguments advanced by the learned counsels for the parties and have also carefully gone through the record of the case. I now proceed to record my findings on the issues, as below :
ISSUE NO.1 : NEGLIGENCE
9 Since, the present petition is instituted under Section 166 MV Act, it was incumbent upon the petitioners to establish the factum of negligence attributable to the erring driver, Mukesh, in plying the offending truck trolla, bearing registration No.HR 38 D-3903, rashly and negligently. The FIR in the present case had been registered on the basis of information received by the duty officer in the police station whereupon the IO, ASI Balbir Singh along with Const.Pradeep reached the spot where he found the offending truck/trolla and the Santro Car of the victim in accidented condition Suit No.33/2010/2009 (A.K.Puri etc. Vs. Mukesh etc.) Page 4 of 16 whereafter he reached the hospital and came to know that the victim had been declared brought dead by the doctor. No eye-witness met him in the hospital.
10 The facts leading to the fatal accident have later on been reiterated by the petitioners while tendering their examination affidavits, who though are not the eye-witnesses but have relied upon the investigation conducted by the IO immediately after the registration of the case. The post- mortem report of the deceased prepared by AIIMS Hospital, reflect that the death of deceased is because of coma caused due to head injury by blunt force and the injuries on the person of the deceased were ante mortem. 11 It be observed that the erring driver despite serving through publication, has not caused appearance to deny the allegations made against him by the parents of the deceased. He has also chosen not to lead his own version. The owner though had filed the reply taking the plea that the accident occurred due to the negligence of deceased himself, has not cross-examined the petitioners and chosen to stay away from the proceedings and no question was put to him on the aspect of negligence. Though, the petitioners were cross-examined by the counsel for the insurance company, nothing adverse came out to dis-credit their statements on the version given by them regarding the negligent of driving the offending vehicle. Further, the very fact that the trolla went beyond control of the driver, is apparent from the very fact that it breached road limit and climbed over the divider before it hit the vehicle of the deceased which is possible only either in case of uncontrollable speed or lack of skill of the driver plying the truck trolla, which fact itself is sufficient to indite towards the driver's rash and negligent driving. 12 It be observed further that the IO being a public servant and a neutral person, was expected to conduct the investigation fairly and since Suit No.33/2010/2009 (A.K.Puri etc. Vs. Mukesh etc.) Page 5 of 16 there is no allegations of bias levelled against him, the investigation conducted by him, i.e., preparation of site plan, seizure of both the vehicles involved in the accident, conducting of their mechanical inspections, inditing the involvement of the offending truck trolla in the accident, hence are believed. During the investigation, the IO also arrested the erring driver and seized the documents relating to the offending vehicle and the D/L of the erring driver. Thus, sufficient material is placed on record to indite towards the rashness and negligence of the erring driver, Mukesh in plying the offending truck trolla and in causing the accident against both the deceased persons. 13 Even otherwise, it is pertinent to observe that the degree of proof required for proving the negligence on the part of the driver in the present proceedings, is not as vigorous as is required in proving the guilt of the accused in criminal trial. The intent of the present legislation is benevolent and the entire purpose of the legislation is likely to be defeated if in each case the petitioner is asked to prove beyond reasonable doubt the involvement and negligence on the part of the driver. In reaching to the above opinion, I am guided by the judgment of Kaushnuma Begum and others Versus New India Assurance Limited, 2001 ACJ 421 SC as well as the case reported as National Insurance Company Limited Versus Pushpa Rana, 2009 ACJ 289, wherein it is held that mere involvement of a vehicle is sufficient to establish and hold the claim petition to be maintainable. It is held that even the certified copy of charge-sheet may not be asked for if the petitioner is able to satisfy on record the involvement of the offending vehicle through the copy of FIR and the mechanical inspection report. The issue hence, is decided in favour of the petitioner and against the respondents. ISSUE NO.2 : COMPENSATION :
Suit No.33/2010/2009 (A.K.Puri etc. Vs. Mukesh etc.) Page 6 of 16LOSS OF DEPENDENCY
14 The deceased as observed above, had acquired multiple skills after completing diplomas in Computer Course, TV News Reading, Anchoring Course and Web Designing Course. Lastly, he joined M/s.Jet Airways. As per Ex.PW3/1, he was engaged as a Flight Stewart on a gross salary of Rs. 8,000/- per month since, he was under training at that time, however, it was noted that on his successful completion of probation, he would be entitled to gross income of Rs.25,320/- per month with a break up as follows :
Salary Head Amount (Rs.)
Basic Salary 2,900/-
House Rent Allowance 870/-
Cost of Living Allowance 350/-
Efficient Bonus 1,000/-
Uniform & Kit Maintenance Allowance 1,000/-
Telephone Allowance 500/-
Flight Duty Allowance (for 22 days) 18,700/-
Gross Salary 25,320/-
15 The above shows the allowance towards flight duty for 22 days
@ Rs.18,700/-. Apart from other terms and conditions, it has also been agreed that he will be entitled to the flight allowance as agreed earlier @ Rs. 18,700/- if the services are rendered for 22 days, however, except in case of his availing privileged leave, the leave allowance will be paid of actual number of days. In preceding condition No.13, it had been laid and agreed that the flight duty allowance @ Rs.850/- per flight duty shall be paid. Consequent to the above, it was also one of the condition that the deceased had to be medically fit and within the weight limit as prescribed by the company's Medical Officer. Thus, as this is shown that the deceased was in Suit No.33/2010/2009 (A.K.Puri etc. Vs. Mukesh etc.) Page 7 of 16 service when he met with the cruel accident, it is to be presumed that he was medically fit.
16 In a subsequent communication dated 2.4.2008, Ex.PW3/2, his services have been confirmed by the company. There is structural revision of his standing allowance as is shown in Ex.PW3/3 which showed that his emoluments have risen by Rs.3,580/-. It is pertinent to observe that the raise in emoluments have been made effective from 3.7.2007 whereas the deceased had joined the services on 22.3.2007, showing that immediately on his completion of six months services, he was given rise showing that his services were liked by the employer due to which there has been more than 50% increase in the salary of the deceased. It is to be observed that at the time of his confirmation, his salary was Rs.6,620/- (except of flight allowance) which was enhanced to Rs.10,200/- thereby showing increase of an amount of Rs.3,580/- which is about 55% of the initial agreed pay. As the Annexure shows that he was also entitled to Line Crew Allowance (Domestic) @ Rs. 300/- per hour and @ Rs.900/- per hour PL. It also shows that he was entitled to over time @ Rs.450/- per hour during line crew, up to rendering 85 hours of service and beyond rendering 86 hours, overtime was paid @ Rs.550/-. The salary was further increased with effect from 1.4.2008 as is shown by Ex.PW3/4. This time, there has been an increase of Rs.1,750/- again within a period of six months. The salary was revised again with effect from July, 2008 and this time, it was made Rs.12,857/-, thus, showing an increase of Rs. 907/-. Significantly, this time the period of his flight duty were fixed for 66 hours in a month and in excess to rendering the duty beyond the above hours, he was to be paid the flight duty allowance at additional rate. The above reflects clearly that apart from the salary on account of basic pay, HRA, he was compensated for cost of living. Allowance was also provided for Suit No.33/2010/2009 (A.K.Puri etc. Vs. Mukesh etc.) Page 8 of 16 efficiency and he was also given uniform and kit maintenance allowance, telephone allowance etc. All the above payments have been justified in the contract of employment and subsequent increments later on showing that availability of telephone at residence is one of the condition for employment as well the maintenance and wearing of uniform and thus, compensation qua the above is to be considered as part of the salary of the deceased. 17 In respect of flight duty allowance qua which the objection is raised by the insurance company, PW3 Shri Bharat Bhushan Yadav, Manager HR, Jet Airways has detailed that the flight allowance were fixed as per the guidelines of DGCA and the deceased was receiving an amount of Rs. 22,100/- towards 26 days of flying in February, 2009 and the last emoluments received thus, were around Rs.34,957/-. In this case, it is specified by the witness that the deceased was presenting himself as and when asked for by the employer and as per the operational requirements. He got the regular flight allowance for all preceding months. This statement is important as in none of the months, the deceased got excused himself on any ground showing his incapacity, incompetency and dis-interest and/or any other reason on the part of employer to not allow him to fly. Thus, it is to be taken that the payment made to him towards flight allowance was an integral part of his emoluments.
18 The Hon'ble Apex Court in case titled, Sunil Sharma and others Versus Bachitar Singh and others, 2011 ACJ 1441 has laid down that any amount/allowance received which is taken home and is utilized for the benefit of the family, is to be computed for calculation of income in order to decide the benefit of dependency. In the absence of insurance company's bringing on record any other law to show that the family of the deceased has to be deprived of the above amounts, I am of the view that the amount Suit No.33/2010/2009 (A.K.Puri etc. Vs. Mukesh etc.) Page 9 of 16 towards the flight allowance is to be treated as part of the income and is to be considered while computing the compensation. Hence, in such circumstances, the emoluments of the deceased is to be considered as Rs. 34,957/- per month.
19 The deceased was having a bright future. The factum that he had competent multiple skills and was a reasonable student as well as worthwhile employee as is shown from the documents placed on record reflecting his sudden increase in the salary and almost doubling of the same from the date of joining within 1½ years, I am of the view that he is entitled to at least 50% of the future prospects as is laid down in case titled, Sarla Verma Versus DTC, passed on 15.4.2009 in SLP No.3483/2008 and his income thus, is calculated as under :
34,957 X 50% = 17,478.50 34,957 + 17,478.50 = 52,435.50 rounded off to Rs.52,436/-
Deductions In view of the judgment of Hon'ble Apex Court in case titled Amrit Bhanu Shali & others Versus National Insurance Company Ltd. and others in Civil Appeal No.3397 of 2012 arising out of SLP (C) No. 27751 of 2011 decided on 4.4.2012 and Sarla Verma Versus DTC (supra), as the number of dependents upon the deceased are the parents, deductions on account of personal expenses @ 50% are to be made from the dependency. To get the actual dependency of the LRs of the deceased, the following formula is adopted:
52,436 divided by 2 = 26,218/-
52,436 - 26,218 = 26,218/-Suit No.33/2010/2009 (A.K.Puri etc. Vs. Mukesh etc.) Page 10 of 16
For calculating the yearly dependency of the LRs of the deceased, the amount is to be multiplied with 12 and therefore, the yearly dependency comes to Rs.26,218 X 12 = Rs.3,14,616/-.
Thus, the actual yearly dependency of the petitioners is assessed as Rs.3,14,616/- which the deceased would have contributed to the family, had he remained alive.
Multiplier The date of birth of deceased, Prateek Puri as per the documents placed on record, was 20.6.1981. Thus, at the time of his death due to the accident on 8.3.2009, he was aged about 28 years. Therefore, in view of the law laid down in Amrit Bhanu Shali & others Versus National Insurance Company Ltd. and others (supra), the multiplier of '17' in respect of age of the deceased i.e., for the persons falling in the age group of '26-30' is taken to assess the loss of dependency of the deceased. Hence, total loss of dependency of the LR of the deceased is assessed as 3,14,616 X 17 = 53,48,472/- The award on account of dependency for the above amount is passed.
FUNERAL EXPENSES
20 The petitioners on record, have not filed any document on account of expenses of funeral of the deceased, Prateek Puri. However, it is presumed that an amount of Rs.10,000/- at least may have been spent on the last rites of the deceased. The amount of Rs.10,000/- is hence, awarded on account of funeral expenses.
Suit No.33/2010/2009 (A.K.Puri etc. Vs. Mukesh etc.) Page 11 of 16LOVE & AFFECTION 21 The deceased left behind his parents, namely, Shri Anil Kumar Puri and Smt.Neelam Puri. The Hon'ble High Court in para 8 of the case titled, Cholamandalam MS General Insurance Co.Ltd. Versus Ram Kumar etc. in MAC App.No.757/2011 decided on 19.7.2012, has made following observations regarding awarding love & affection :
"It is urged that the compensation of Rs.1,00,000/- awarded towards loss of love and affection is excessive. Normally, when full compensation towards loss of dependency is granted only a nominal sum is awarded towards loss of love and affection. The trend of the High Court and the Supreme Court is to grant a sum of Rs. 25,000/- under this head. Such a sum was granted by the Supreme Court in Sunil Sharma V. Bachitar Singh (2011) 11 SCC 425 and in Baby Radhika Gupta V. Oriental Insurance Company Limited (2009) 17 SCC 627 towards love and affection. However, in a later judgment in Amrit Bhanu Shali & Ors. Vs. National Insurance Company Ltd. & Ors. (2012) 6 SCALE 1, in case of a death of bachelor, a compensation of Rs.1,00,000/- was awarded by the Supreme Court. In the circumstances, I am not inclined to interfere in the award of a compensation of Rs. 1,00,000/- towards love and affection."
In view of the observations made above, the petitioners are awarded Rs.50,000/- each, total amounting to Rs.1,00,000/- towards towards love and affection.
LOSS OF ESTATE 22 In view of the circumstances detailed above, the petitioners are also entitled for loss of estate in respect of death of Prateek Puri. Accordingly, an amount of Rs.10,000/- is passed in favour of the petitioners towards loss of estate.
Suit No.33/2010/2009 (A.K.Puri etc. Vs. Mukesh etc.) Page 12 of 16The total compensation is assessed as under :-
Loss of Dependency Rs.53,48,472/-
Funeral Expenses Rs. 10,000/-
Love &Affection Rs. 1,00,000/-
Loss of Estate Rs. 10,000/-
Total Rs.54,68,472/-
Less Interim Award Rs. 50,000/-
Balance Payable Sum Rs.54,18,472/-
Hence, the petitioners are awarded a total amount of Rs. 54,18,472/-.
23 I hereby award an amount of Rs.54,18,472/- as compensation with interest @ 9% per annum, from the date of filing the present petition, i.e., 28.7.2009 till the date of realisation of the amount, in favour of the petitioners and against the respondents.
24 The driver, R-1 is the principal tort feasor whereas R-2 and R-3, being the owner and the insurance company, are the joint tort feasors, and are jointly and vicariously liable for the acts of the driver, R-1. 25 In view of the above discussion, the insurance company is directed to discharge the liability of the award amount within a period of 60 days from today, along with interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay. 26 In the judgment of Union of India and others Versus Nansari and others, MACA 682/2005, decided on 13.1.2010, which has been affirmed by the Hon'ble Supreme Court in order dated 17.12.2009 in SLP (Civil) No.11801-11804/2005, the Hon'ble High Court have given directions for the protection of the award amount. In view of the aforesaid judgment, it is directed that out of the above awarded amount of Rs. 54,18,472/- (Rupees fifty four lac eighteen thousand four hundred and seventy two only), 40% of the amount, i.e., Rs.21,67,389/- (Rupees twenty Suit No.33/2010/2009 (A.K.Puri etc. Vs. Mukesh etc.) Page 13 of 16 one lac sixty seven thousand three hundred and eighty nine only) be imparted in favour of father of deceased, namely, A.K.Puri and the remaining 60% of the amount, i.e., Rs.32,51,083/- (Rupees thirty two lac fifty one thousand and eighty three only) be imparted in favour of petitioner No.2, being mother of the deceased, namely, Smt.Neelam Puri.
27 It is also directed that out of the amounts awarded in favour of the parents of deceased, amounts of Rs.1,67,389/- (Rupees one lac sixty seven thousand three hundred and eighty nine only) in favour of father and Rs.1,51,083/- (Rupees one lac fifty one thousand and eighty three only) in favour of mother of deceased, be released immediately on its realisation. 28 The remaining amounts of Rs.20,00,000/- (Rupees twenty lac only) and Rs.31,00,000/- (Rupees thirty one lac only) respectively, awarded in favour of father and mother of the deceased, be kept in the State Bank of India Branch by way of FDRs for ten years in their accounts, A.K.Puri and Smt.Neelam Puri, separately. The petitioners may approach Shri H.S.Rawat, Nodal Officer (Mobile No.09717044322), for opening of the accounts after receiving the copy of the award, whereafter the amount of the petitioners, A.K.Puri and Smt.Neelam Puri, shall be released to them as under : 29 10% of the FDRs amount be released to them on the expiry of first year, along with proportionate costs.
30 10% of the FDRs amount be released to them on the expiry of second year, along with proportionate costs.
31 10% of the FDRs amount be released to them on the expiry of third year, along with proportionate costs.
32 10% of the FDRs amount be released to them on the expiry of fourth year, along with proportionate costs.
Suit No.33/2010/2009 (A.K.Puri etc. Vs. Mukesh etc.) Page 14 of 1633 10% of the FDRs amount be released to them on the expiry of fifth year, along with proportionate costs.
34 10% of the FDRs amount be released to them on the expiry of sixth year, along with proportionate costs.
35 10% of the FDRs amount be released to them on the expiry of seventh year, along with proportionate costs.
36 10% of the FDRs amount be released to them on the expiry of eighth year, along with proportionate costs.
37 10% of the FDRs amount be released to them on the expiry of ninth year, along with proportionate costs.
38 The remaining amount of 10% of the FDRs be released to the petitioners on the expiry of tenth year, along with proportionate costs. The original FDRs be kept with the bank which shall issue a photo identity cards to the petitioners to ascertain their identity. The copy of the award shall be given to the parties.
39 It is directed that the FDRs so deposited with the bank, be renewed automatically and the interest thereupon shall be paid monthly, which shall be credited automatically in the savings account of the petitioners. The original FDRs be detained by the bank in safe custody. However, the original passbooks shall be issued and given to the petitioners along with the photocopy of the FDRs. The bank is directed to hand over the original FDRs on afflux of time and shall issue the photo identity card to the petitioners to facilitate the withdrawal after due verification. It is further directed that no cheque books shall be issued to the petitioners without the permission of this court.
Suit No.33/2010/2009 (A.K.Puri etc. Vs. Mukesh etc.) Page 15 of 1640 It is also directed that the insurance company shall make an endorsement of the title of the case, suit number, name of the parties and other relevant details while depositing the cheques in the bank. The compliance be made by all concerned.
41 Copy of the order shall be kept for receiving the compliance. File be consigned to the record room after completion of necessary formalities.
Announced in open Court ( NIRJA BHATIA )
Dated : 5.11.2012 PO : MACT-02, (SE)
Saket Courts, New Delhi
Suit No.33/2010/2009 (A.K.Puri etc. Vs. Mukesh etc.) Page 16 of 16