Delhi District Court
Smt. Bibi Jaheda vs Gyanendra Singh & Ors. Page No. 1 Of 3 on 28 October, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.387/14
Date of Institution: 30.09.2013
ID No.02403C0137702013
IN THE MATTER OF:
1. Smt. Bibi Jaheda
W/o Late Shri Abu Shahid
2. Ramajuddin
S/o Late Shri Abu Shahid
3. Roshanara
D/o Late Shri Abu Shahid
4. Chaintara
D/o Late Shri Abu Shahid
5. Afsana Khatoon
D/o Late Shri Abu Shahid
All R/o Village Dakshin Tarapur Mauja
O.J.L. No. Tarapur109, Bidyanandapur
Chakauliya, District Uttar Dinajpur
West Bengal 733208.
The petitioners No.2 to 5 being minors
through their legal guardian/ mother
Smt. Bibi Jaheda
i.e. petitioner No.1. ...Petitioners
Suit No.387/14
Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 1 of 30
Versus
1. Shri Gyanender Singh (Drivercumowner)
S/o Shri Girwer Singh
R/o Village Sharifpur, PO Kithor
PS Babugarh
P.P. Mudaffra Bagarpur
Distt. Hapur, U.P.
2. ICICI Lombard General Insurance Co. Ltd.,
414, Veer Savarkar Marg
Near Siddhi Vinayak Temple
Prabhadevi, Mumbai - 400025. ...Respondents
Final Arguments heard : 04.09.2014 Award reserved for : 28.10.2014 Date of Award : 28.10.2014 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioners that on 11.08.2013 at 12.05 p.m, the deceased Abu Shahid was coming from his duty place towards his residence by foot. When he reached near Aerocity Hotel Complex, Mahipal Pur Road, one motorcycle bearing No.DL 9SZ 9720 (Hero Honda Splendor Plus) coming from T3, IGI Airport driven by the respondent No.1 in a rash and negligent manner without caring for the traffic rules hit the deceased from the back side Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 2 of 30 with great force and due to the forceful impact, the deceased fell down on the road and received grievous fatal injuries. It is averred that the deceased was taken to Fortis Hospital by Head Constable Rajender Pal No.725/T, thereafter, the deceased was referred to Safdarjung Hospital, New Delhi, and the doctors declared him dead and conducted the post mortem. It is stated that in respect of the accident FIR No.238/2013 under Sections 279/304A IPC was registered at PS IGI Airport. It is averred that approximately Rs.1 lac were spent on the treatment of the deceased.
3. It is averred that the deceased was aged 35 years and was doing labour work with Simplex Company, Ground Floor, Hyatt Hotel, IGI Airport, New Delhi and earning Rs.10,500/ p.m. It is averred that the deceased was the only earning member of his family and he left behind his widow (wife) and four minor children. It is prayed that an amount of Rs.50,00,000/ be awarded as compensation in favour of the petitioners and against the respondents.
4. Respondent No.1 filed the written statement making the preliminary submissions that the petitioners had not approached the court with clean hands and had concealed the material facts. It is averred that the accident in question had not arisen due to the rash and negligent driving by the respondent No.1 but because of the rash and negligent driving of the deceased himself. It is averred that the deceased had been negligent in crossing the fast moving road at a place where there was no Zebra Crossing and without even looking in the direction of the traffic and without following the Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 3 of 30 safety rules. It is averred that the respondent No.1 tried his best to stop the motorcycle in time and had himself sustained injuries. Further, the deceased was under the influence of liquor and had been carrying a bottle of whiskey with him. It is averred that the respondent No.1 stopped and picked up the deceased with the help of passerby with an intent to get him first aid. It is averred that the respondent No.1 is a government employee working with CISF as a constable and was coming from his duty. The respondent No.1 was driving his motorcycle at a normal speed and was vigilant and careful while driving the same. It is averred that the deceased had come in the way all of a sudden in the manner and despite sudden application of brakes, the collision had happened. It is averred that the respondent No.1 is not responsible for the accident in question. It is averred that the petitioners have made false averments relating to the occupation and income of the deceased and regarding the expenses incurred on the treatment of deceased. It is averred that the vehicle of the respondent No.1 was duly insured and the respondent No.2 is the insurer and in case any claim is found to be payable, the insurer should be held liable for the same. The averments made in the claim petition were denied. It is denied that the deceased was working as a labour or that he was earning Rs.10,500/ per month. It is averred that the petitioners have made false averments in order to claim a higher amount of compensation from the court. It is admitted that the FIR as stated in the petition has been registered for the accident against the respondent No.1/ driver falsely implicating the vehicle and the respondent No.1, however, there was no Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 4 of 30 negligent or culpable act on the part of the respondent No.1 in the said accident and the accident had happened due to the rash and negligent act of the deceased himself. It is admitted that the deceased was on foot and crossing the road at the time of accident. It is averred that the accident had happened due to the rash and negligent act of the deceased himself, who appeared to be under the influence of liquor and was crossing the road without even looking in the direction from where the traffic was coming. It is averred that the vehicle was not being driven in any rash and negligent manner by the respondent No.1 and cannot be said to be an offending vehicle. It is averred that the accident had happened as the deceased was negligent in crossing the road without caring for traffic rules. It is averred that the claim is based on incorrect facts and is highly exaggerated.
5. Respondent No.2 filed the reply/ reasoned decision taking the preliminary objections that as per the charge sheet filed by the Investigating Officer, the driver was under the influence of alcohol at the time of the accident. Thus, there was not only breach of terms and conditions of the policy but it was in violation of Section 185 of The Motor Vehicle Act which had also been invoked against the driver of the offending vehicle. It is averred that there is contradiction in the case put up by the prosecution, as the complainant had stated in his statement that the deceased was crossing the road on foot, but in the postmortem report of the deceased it was found mentioned that the deceased was driving the motorcycle at the time of the accident and as such Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 5 of 30 there was doubt about the manner of the alleged accident and the way in which it had been caused.
6. Detailed Accident Report was filed by the IO on 30.9.2013 and the same day the claim petition was filed by the petitioners. From the pleadings of the parties, the following issues were framed by my learned predecessor vide order dated 09.01.2014 :
1. Whether Sh. Abu Shahid sustained injuries in the accident which occurred on 11.08.2013 at about 12.05 PM at IGI Airport, Mahipal Road, Near Aerocity Hotel Complex, Delhi caused by rash and negligent driving of vehicle No. DL9SZ9720 being driven and owned by respondent no.1 and insured with respondent no.2? OPP
2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3. Relief.
Vide order dated 22.4.2014 interim award was passed.
7. On behalf of the petitioners the petitioner No.1 Smt. Bibi Jaheda entered into the witness box as PW1 and led her evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. She stated that the deceased was the only earning member of her family and left behind her and her four children. The deceased earned Rs.9000/ per month. She stated Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 6 of 30 that the petitioners had expended Rs.40,000/ approximately on transportation of dead body from Delhi to West Bengal and Rs.15,000/ approximately on the burial (cremation). She stated that due to the negligence of the respondent No. 1, she and her four minor children became on starvation. She stated that the insurance company is liable being the insurer jointly and severally. She stated that the deceased was aged about 34 to 35 years at the time of the accident. Copy of the income certificate is Ex.PW1/A and copy of the medical bill is Ex.PW1/B.
8. Shri Sanjay Purshottam Dharmadhikari, Officer from Aerocity Site Office was examined as PW2 who stated that the income certificate Ex.PW1/A filed with the DAR was issued by him and the attendance record was also maintained by him and the same is Ex.PW2/A (colly).
9. PW3 Constable Bhoop Singh deposed that he is an eye witness of the case and FIR was got registered by him. He stated that on 11.08.2013 at about 12.05 p.m, he was on duty from 8.00 a.m to 8.00 p.m at IGI Airport Road towards Mahipal Pur Road. On that day, a motorcycle bearing No.DL9SZ9720 (Hero Honda Spender) came from the side of IGI Airport and was going towards Mahipal Pur driven by Shri Gyanender (whose name was revealed after the accident on inquiry) and had hit the injured who was crossing the road, as a consequence of which the injured fell on the road and got serious injuries on head. He stated that he along with HC Rajinder Singh shifted the Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 7 of 30 injured in a private car to the hospital. HC Rajinder Singh had accompanied the injured in the car to the hospital. He stated that the IO came at the spot of the accident and recorded his statement there. Thereafter, PCR van had reached the spot of the accident but before that the injured was shifted to the hospital. PE was closed on 3.6.2014. It was stated by the learned counsel for the respondent No.2 that no RE was to be led and RE was closed on 13.8.2014.
10. I have heard the Learned Counsel for the petitioners as well as the Learned Counsels for the respondents and perused the record. The petitioner No.1 was also examined on 13.8.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
11. My findings on the specific issues are as under:
Issue No. 1
12. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that the deceased sustained injuries in an accident caused due to rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 8 of 30 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 9 of 30 in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
13. The case of the petitioners is that on 11.08.2013 at 12.05 p.m, the deceased Abu Shahid was coming from his duty place towards his residence by foot. When he reached near Aerocity Hotel Complex, Mahipal Pur Road, one motorcycle bearing No.DL 9SZ 9720 (Hero Honda Splendor Plus) coming from T3, IGI Airport driven by the respondent No.1 in a rash and negligent manner without caring for the traffic rules hit the deceased from the back side with great force and due to the forceful impact, the deceased fell down on the road and received grievous fatal injuries. It was averred that the deceased was taken to Fortis Hospital by Head Constable Rajender Pal No.725/T, thereafter, the deceased was referred to Safdarjung Hospital, New Delhi, and the doctors declared him dead and conducted the post mortem. It was stated that in respect of the accident FIR No.238/2013 under Sections 279/304A IPC was registered at PS IGI Airport. PW1 in para 2 of her affidavit had reiterated the mode and manner of the accident as stated in the claim petition. The petitioners had also examined PW3 who had stated about the manner of the accident.
Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 10 of 30
14. The IO had filed Detailed Accident Report, on which reliance has been placed by the petitioners, containing the criminal record consisting of copy of charge sheet; copy of tehrir, copy of FIR; copy of site plan; copy of arrest memo and personal search memo, copy of seizure memos; copy of mechanical inspection report of the offending vehicle, copy of RC of the offending vehicle with its verification report, copy of the insurance policy of the offending vehicle and its verification report and copy of DL of the respondent No.1 and verification report of the DL of the respondent No.1, copies of photographs as also verified copy of the pay slip of the deceased, verified copies of bills of Fortis Hospital, copy of MLC and the post mortem report and copies of statements under Section 161 Cr.P.C. As per the FIR No.238/13 under sections 279/338 IPC and Section 185 MV Act, PS IGI Airport the case was registered on the basis of complaint of Ct. Bhoop Singh who has been examined as PW3 wherein he had stated about the manner of the accident. As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/304A IPC and Section 185 MV Act.
15. The respondent No.1 had filed the written statement averring that the accident in question had not arisen due to the rash and negligent driving by the respondent No.1 but because of the rash and negligent driving of the deceased himself. It was averred that the deceased had been negligent in crossing the fast moving road at a place where there was no Zebra Crossing and without even looking in the direction of the traffic and without following the Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 11 of 30 safety rules. It was averred that the respondent No.1 tried his best to stop the motorcycle in time and had himself sustained injuries. Further, the deceased was under the influence of liquor and had been carrying a bottle of whiskey with him. It was averred that the respondent No.1 stopped and picked up the deceased with the help of passerby with an intent to get him first aid. It was averred that the respondent No.1 is a government employee working with CISF as a constable and was coming from his duty. The respondent No.1 was driving his motorcycle at a normal speed and was vigilant and careful while driving the same. It was averred that the deceased had come in the way all of a sudden in the manner and despite sudden application of brakes, the collision had happened. It was averred that the respondent No.1 is not responsible for the accident in question. It was admitted that the FIR had been registered for the accident against the respondent No.1/ driver falsely implicating the vehicle and the respondent No.1, however, there was no negligent or culpable act on the part of the respondent No.1 in the said accident and the accident had happened due to the rash and negligent act of the deceased himself. It was admitted that the deceased was on foot and crossing the road at the time of accident. It was averred that the accident had happened due to the rash and negligent act of the deceased himself, who appeared to be under the influence of liquor and was crossing the road without even looking in the direction from where the traffic was coming. It was averred that the vehicle was not being driven in any rash and negligent manner by the respondent No.1 and could not be said to be an offending vehicle.
Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 12 of 30
16. During crossexamination by the learned counsel for the respondent No. 2 PW1 stated that she was not an eye witness to the accident. She denied the suggestion that her husband met with the accident on account of his own negligence or that the offending vehicle was not involved in the same. During crossexamination by the learned counsel for the respondent No.1 PW1 denied the suggestion that the motorcycle driven by respondent No.1 was not involved in the accident or that she had lodged a false claim. Thus PW1 stated that she was not an eye witness to the accident. PW1 denied the suggestion that the motorcycle driven by respondent No.1 was not involved in the accident but that is not even the case of the respondent No.1 as per the written statement, rather the case of the respondent No.1 is that he was not negligent but the accident had taken place due to the negligence of the deceased himself. However PW1 was not an eye witness to the accident.
17. The petitioners in support of their case had examined PW3 and during crossexamination by the learned counsel for the respondent No.1 PW3 stated that the deceased was crossing the road at the time the collision took place. He stated that there is no Zebra Crossing at the place from where he was crossing the road even no red light was there. He again said that he did not know whether any mark for crossing the road or Zebra Crossing was there on the road. He admitted that he had seen the spot after hearing the collision. He stated that he had even seen the respondent Gyanender while he was coming from the Airport side to Mahipal Pur. The speed of the motorcycle must be Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 13 of 30 around 5060 km/hr. He stated that the deceased was carrying wooden bunch of sticks (perhaps for fuel) on his shoulders. He stated that the deceased must be a labourer. He denied the suggestion that the deceased was crossing the road in a hasty manner. He could not say whether the deceased was crossing the road in violation of any traffic rules. He denied the suggestion that the deceased was negligent and was himself responsible for the accident. He stated that HC Rajinder Prasad was also eye witness to the accident. PW3 had called the PCR but he did not take anybody to the hospital. He denied the suggestion that he is not an eye witness and he had reached the spot after the accident occurred. He stated that the road on which the accident took place is a broad highway like road and the traffic was generally plying on high speed on the said stretch. He stated that he did not know the prescribed speed limit for the said road. He could not say that the respondent No.1 was not driving the vehicle negligently. He did not know whether there was any other eye witness to the incident or not. During cross examination by the learned counsel for the respondent No.2 PW3 stated that the deceased was going on foot and crossing the road. He stated that he was on duty at the Aerocity Red Light where he was patrolling. He stated that the accident had taken place about 3040 feet from where he was standing. He stated that the respondent No.1 i.e. the driver was present at the spot of the accident. He denied the suggestion that the offending vehicle is a planted vehicle. Thus PW3 stated that the deceased was crossing the road at the time the collision took place. It may be mentioned that the respondent No.2 had contended that as per the Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 14 of 30 complaint the deceased was on foot whereas the post mortem report showed that the deceased was driving a motorcycle at the time of the accident. It is true that it is stated in the post mortem report 'alleged history of road traffic accident on 11/8/2013 at 12.00 pm while driving motorcycle' but on that basis the contents of the complaint which was recorded soon after the accident cannot be doubted and even during crossexamination by the learned counsel for the respondent No.2 PW3 stated that the deceased was going on foot and crossing the road. As such nothing much turns on this contention.
18. It is significant that PW3 stated that there is no Zebra Crossing at the place from where the deceased was crossing the road even no red light was there. He again said that he did not know whether any mark for crossing the road or Zebra Crossing was there on the road. Thus according to PW3 there was no Zebra Crossing or red light at the spot of accident but he again said that he did not know whether any mark for crossing the road or Zebra Crossing was there. A perusal of the site plan shows that something like a Zebra Crossing is shown next to the spot of the accident though it is not specifically mentioned. It may also be mentioned that as per the complaint the deceased had crossed the road and was going towards Mahipalpur when he was hit by the offending vehicle from behind and in fact if the deceased was hit from behind then in all likelihood he would not be crossing the road but walking on the road. PW3 admitted that he had seen the spot after hearing the collision but he had also stated that he had even seen the respondent Gyanender while Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 15 of 30 he was coming from the Airport side to Mahipal Pur. The speed of the motorcycle must be around 5060 km/hr. He stated that the deceased was carrying wooden bunch of sticks (perhaps for fuel) on his shoulders. PW3 could not say whether the deceased was crossing the road in violation of any traffic rules but even the respondents have not brought anything on record to show the same. He stated that HC Rajinder Prasad was also eye witness to the accident. He stated that the road on which the accident took place is a broad highway like road and the traffic was generally plying on high speed on the said stretch though he did not know the prescribed speed limit for the said road. PW3 also could not say that the respondent No.1 was not driving the vehicle negligently and whether there was any other eye witness to the incident or not. He stated that he was on duty at the Aerocity Red Light where he was patrolling and the accident had taken place about 3040 feet from where he was standing. He stated that the respondent No.1 i.e. the driver was present at the spot of the accident and denied the suggestion that the offending vehicle is a planted vehicle which is again not the case of the respondent No.1 himself who had stated that he had also received injuries in the accident.
19. In the instant case it cannot thus be disputed that the accident had taken place with the offending vehicle. The respondent No.1 who is the driver and owner of the offending vehicle has not produced any evidence to dispute the version put forth by the petitioners. Further the criminal record has been Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 16 of 30 placed on record which shows that the respondent No.1 has already been charge sheeted for the offence under Sections 279/304A IPC and Section 185 MV Act. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondents have also not adduced any evidence to prove any other version of the accident. There is absolutely no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.DL9SZ9720. The fact that the charge sheet is filed against respondent No.1 and respondent No.1 is facing criminal trial is also not disputed. It may be mentioned that the respondent No.1 had tried to contend that the deceased was under the influence of liquor but nothing has been brought on record to show the same. In fact the MLC of the respondent No.1 shows smell of alcohol and the respondent No.1 has also been charge sheeted for the offence under Section 185 MV Act. In view of the testimony of PW1 and PW3 and the documents on record which have remained unrebutted, the negligence of respondent No.1 has been prima facie proved.
20. It was stated that the deceased fell down on the road and received fatal injuries and was removed to Fortis Hospital and then he was referred to Safdarjung Hospital where he was declared dead by the doctors. The MLC of the deceased is on record as also the post mortem report and as per the latter Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 17 of 30 the cause of death was ante mortem injury to the head produced by blunt force/surface impact and that all injuries were ante mortem in nature. Thus it stands established that the deceased had sustained injuries in the alleged accident due to which he died. This issue is accordingly decided in favour of the petitioners and against the respondents.
Issue No.2
21. Since issue No.1 has been decided in favour of the petitioners they would be entitled to compensation as per the provisions of the Act. The petitioners are the legal representatives of the deceased being the wife and four minor children of the deceased Shri Abu Shahid. PW1 was cross examined on the point of dependency and during crossexamination by the learned counsel for the respondent No.2 PW1 stated that she is illiterate. She stated that her fatherinlaw and motherinlaw had already expired. During examination by the Tribunal the petitioner No.1 Ms. Bibi Zaheda stated that she did not know her age. She stated that she has four children, aged 10 years, 8 years, 4 years and 2 years. She stated that her elder son goes to school. Thus being the wife, the petitioner No.1 would be regarded as dependent on the deceased and being the minor children, the petitioners No.2 to 5 would also be regarded as dependent on the deceased. Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 18 of 30
22. The petitioners have claimed loss of dependency on the basis that the deceased was aged 35 years and was doing labour work with Simplex Company, Ground Floor, Hyatt Hotel, IGI Airport, New Delhi and earning Rs. 10,500/ p.m. It was averred that the deceased was the only earning member of his family and he left behind his widow (wife) and four minor children. The petitioner No.1 in paras 2 and 4 of her affidavit Ex.PW1/A had deposed to that effect. She stated that the deceased was the only earning member of her family and left behind her and her four children. The deceased earned Rs. 9000/ per month. She stated that due to the negligence of the respondent No. 1, she and her four minor children became on starvation. Copy of the income certificate is Ex.PW1/A. During crossexamination by the learned counsel for the respondent No.2 PW1 could not tell where her husband was working. She stated that her husband was earning Rs.10,000/ per month. She denied the suggestion that she had stated falsely that her husband was earning Rs.9000/ or Rs.10,000/ per month. She stated that her husband was illiterate. She denied the suggestion that Ex.PW1/A i.e. the alleged salary certificate is forged and fabricated. She denied the suggestion that her husband was earning only Rs.6650/ per month as shown by Form No.10. Thus PW1 could not tell where her husband was working. She stated that her husband was earning Rs.10,000/ per month. She stated that her husband was illiterate.
23. The petitioners in support of their case had examined PW2 who stated that the income certificate Ex.PW1/A filed with the DAR was issued by him and Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 19 of 30 the attendance record was also maintained by him and the same is Ex.PW2/A (colly). During crossexamination by the learned counsel for the respondent No.2 PW2 stated that he had come to the court on verbal instructions of his seniors and no authorization letter was issued to him. He denied the suggestion that the income certificate which was issued by him was false and fabricated. He denied the suggestion that the deceased was earning Rs. 6650/ as shown in the attendance register. He was not crossexamined by the learned counsel for the respondent No.1/ drivercumowner. Thus PW2 denied the suggestion that the income certificate which was issued by him was false and fabricated or that the deceased was earning Rs.6,650/ p.m. In the pay certificate Ex.PW1/A it was stated that the deceased was working as labour and his monthly emoluments was (Approx.) Rs.9,000/. However in the copy of the Register of Wages it was seen that the wages of the deceased for the month of July, 2013 were shown as Rs.6,650/. In response to court question as to why there was discrepancy in the income certificate Ex.PW1/A which showed the income of the deceased as Rs.9,000/ and the attendance record which showed his income as Rs.6,650/ p.m. PW2 stated that the deceased was paid as per the number of days he worked for and he was paid Rs.350/ per day. He was not paid for Sundays and holidays. He stated that the deceased was employed on daily basis and not on fixed income basis. It is thus significant that the deceased was employed on daily basis and not on fixed income basis and he was paid as per the number of days he worked for and he was not paid for Sundays and holidays. If the deduction is made for Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 20 of 30 Sundays, it is seen that the total emoluments of the deceased would come to Rs.9,100/ p.m. considering 26 working days and as such the income of the deceased is taken as Rs.9,000/ p.m. as per Ex.PW1/A for the computation of loss of dependency.
24. It is the case of the petitioners that the deceased was 35 years of age at the time of the accident and it was so stated in the claim petition. PW1 also stated that the deceased was aged about 34 to 35 years at the time of the accident. As per the post mortem report the age of the deceased was 35 years. As such the age of the deceased is taken as 35 years old on the date of the accident i.e. 11.8.2013. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case the multiplier of 16 applies for calculating the loss of income where the age of the deceased is 31 to 35 years.
25. As observed above the dependents on the deceased are his wife and four minor children. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case as the number of dependents was 5 there would be 1/4th deduction towards personal and living expenses of the deceased. As regards the future prospects in Rajesh and Ors. v Rajbir Singh and Ors. 2013 (6) SCALE 563 the Hon'ble Supreme Court held as under:
"11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 21 of 30 (supra) and to make it applicable also to the self employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age.
In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years."
12.In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
Thus the petitioners would be entitled to addition of 50% of the income towards future prospects as the deceased was less than 40 years of age. Accordingly the loss of dependency as per the monthly income i.e. Rs. 9,000/ is calculated as under :
Suit No.387/14
Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 22 of 30 Rs.9,000/ + Rs.4,500/ (50% future prospects) = Rs.13,500/ X 12 (annual) X 16 (multiplier) - 6,48,000/ (1/4th towards personal expenses) = Rs.19,44,000/.
26. The petitioners are also entitled to compensation for loss of love and affection, loss of consortium, loss of estate and funeral expenses. PW1 had deposed that the petitioners had expended Rs.40,000/ approximately on transportation of dead body from Delhi to West Bengal and Rs.15,000/ approximately on the burial (cremation). During crossexamination by the learned counsel for the respondent No.2 PW1 denied the suggestion that she had stated falsely that Rs.40,000/ approximately were spent on transportation of the dead body from Delhi to West Bengal or that Rs.15,000/ were spent on the burial. However there is nothing to show the same.
27. It was also stated that approximately Rs.1 lac were spent on the treatment of the deceased. During crossexamination by the learned counsel for the respondent No.2 PW1 denied the suggestion that the medical bills Ex.PW1/B (colly) were forged and fabricated. Duly verified copy of the medical bills was placed on record with the DAR by the IO and the same show an expenditure of Rs.24,226,88. No other bill has been placed on record.
However the petitioners would have spent some other sums under this head and accordingly an amount of Rs.25,000/ is awarded towards medical treatment and expenses.
Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 23 of 30 The total compensation is determined as under:
Loss of dependency : Rs.19,44,000/
Love and affection : Rs.1,00,000/
Loss of Consortium : Rs.1,00,000/
Loss of Estate : Rs.10,000/
Funeral expenses : Rs.20,000/
Medical expenses : Rs.25,000/
Total : Rs.21,99,000/
Thus, the total compensation would amount to Rs.21,99,000/. RELIEF
28. The petitioners are awarded a sum of Rs.21,99,000/ (Rs.Twenty One Lacs Ninety Nine Thousand only) along with interest @ 9% per annum from the date of filing of the claim petition till its realization including, interim award, if any already passed against the respondents and in favour of the petitioners. The petitioners No.2 to 5 Ramajuddin, Roshanara, Chaintara and Afsana Khatoon would be entitled to 10% share each in the awarded amount and the petitioner No.1 Smt. Bibi Jaheda would be entitled to 60% share in the awarded amount.
29. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 24 of 30 preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgment the award amount is to be disbursed as follows:
a) The entire share of the petitioners No.2 to 5 be kept in FDRs in UCO Bank, Patiala House Court, New Delhi till they attain the age of majority and for 3 years thereafter. 20% of the share of the petitioner No.1 be released to her by transferring it into her savings account and the remaining amount out of her share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
b)The respondent No.2 is directed to deposit the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 25 of 30 Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Smt. Bibi Jaheda, Ramajuddin, Roshanara, Chaintara and Afsana Khatoon within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondent No.2 shall be liable to pay further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released to the petitioner No.1.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the savings account of the petitioner No.1.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner No.1 after due verification and the bank shall issue photo identity card to the petitioner No.1 to facilitate her identity.
g) No cheque book shall be issued to the petitioner No.1 without the permission of the court.
Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 26 of 30
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioner No.1 along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
i) The original fixed deposit receipts shall be handed over to the petitioner No.1 on the expiry of the period of the fixed deposit receipts.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
k) On the request of the petitioners, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioners.
l) The petitioners shall furnish all the relevant documents for opening of the saving bank account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
30. The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 27 of 30 Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount.
APPORTIONMENT OF LIABILITY
31. The respondent No.1 is the driver and owner of the offending vehicle and the respondent No.2 is the insurer in respect of the offending vehicle. It was sought to be contended on behalf of the insurance company that as according to the charge sheet filed by the Investigating Officer the driver of the offending vehicle was under the influence of alcohol at the time of the accident, there was not only breach of terms and condition of the policy but it was in violation of Section 185 of the MV Act and reliance has been placed on the fact that Section 185 of the MV Act has been invoked against the driver of the offending vehicle. It is true that the FIR was registered under Sections 279/338 IPC and also Section 185 MV Act and further the respondent No.1 was charge sheeted for the offence under Section 185 MV Act along with Sections 279/304AIPC and the MLC of the respondent No.1 shows the presence of smell of alcohol but there is merit in the contention of the learned counsel for the respondent No.1 that it was not proved that the respondent No. Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 28 of 30 1 was under the influence of alcohol. In the instant case no report has been produced to show the quantity of alcohol in the blood of the respondent No.1. The learned counsel for the respondent No.1 has relied upon the judgment of the Hon'ble High Court of Delhi in Daya Shankar v. Dheeraj Kumar & Ors. MAC. APP. 1111/2011 dated 6.11.2012 where it was observed that admittedly, no test to measure the quantity of alcohol in the appellant's blood was done by the Doctor at the time of his admission and since the alcohol was not measured, the Claims Tribunal was not justified in holding that the Appellant was under the influence of alcohol and thus he contributed to the accident. Similarly in the instant case there is nothing to show that the alcohol in the blood of the respondent No.1 was measured. As such merely on the basis that the respondent No.1 has been charge sheeted for the offence under Section 185 MV Act the insurance company cannot be absolved of its liability under the policy.
32. The respondents No.1 and 2 are held jointly and severally liable. No evidence has been led on behalf of the respondent No.2. Respondent No.2 i.e. ICICI Lombard General Insurance Co. Ltd. being the insurance company in its reply had not disputed the policy. There is no evidence on behalf of respondent No.2 to show that there was any violation of the rules and terms of policy by the respondent and in fact the duly verified documents regarding the offending vehicle were placed on record by the IO with the DAR. Hence, the respondent No.2 being the insurance company in respect of the offending Suit No.387/14 Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 29 of 30 vehicle is liable to pay the compensation on behalf of the respondent No.1. The respondent No.2 being the insurer is directed to deposit the award amount within 30 days with interest at the rate of 9% from the date of filing of the claim petition till its realization in UCO Bank, Patiala House Courts, New Delhi failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
33. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The respondent No.2 shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 28.1.2015.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House. File be consigned to Record Room.
Announced in open court
on this 28th day of October, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No.387/14
Bibi Zaheda Vs. Gyanendra Singh & Ors. Page no. 30 of 30