Delhi District Court
Mr.Chhatar Pal Son Of Late Mr.Ami Lal (42 ... vs Mr.Raj Kumar Son Of Mr.Nathi Ram ... on 18 November, 2010
IN THE COURT OF MS.NIVEDITA ANIL SHARMA,
JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL02,
NEW DELHI
Suit Number : 267/09.
Unique Case ID Number : 02403C147432009.
1. Mr.Chhatar Pal son of Late Mr.Ami Lal (42 years).
2. Ms.Raj Rani wife of Mr.Chattar Pal (40 years).
Both residents of F446, Village Ghitorni,
New Delhi.
...................Petitioners.
versus
1. Mr.Raj Kumar son of Mr.Nathi Ram (Driver)
R/o 537/2, Scheme No.7,
Shastri Nagar, Meerut, U.P.
2. General Manager, (Owner)
RM, U.P.R.T.C., Meerut, U.P.
.....................Respondents.
Date of institution : 21.04.2008. Arguments concluded on : 18.11.2010. Date of judgment and award : 18.11.2010.
Appearances: Mr.Mahesh Kumar, counsel for both the petitioners. Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 1 of 41 :: Mr.Ashok Popli, counsel for both the respondents. JUDGMENT AND AWARD
1. Mr.Chattar Pal and Ms.Raj Rani, both the petitioners, have filed the present claim petition under sections 166 and 140 of the Motor Vehicle Act, 1988 (hereinafter referred to as the M.V.Act) against Mr.Raj Kumar and General Manager, RM, U.P.R.T.C, Meerut, U.P. for compensation regarding the demise of their son, Mr.Praveen Kumar in road accident.
2. Initially the petition had also been filed against the respondent number 3/ Insurance Company, however, as the offending vehicle was not insured, the name of respondent number 3 was deleted.
3. It is averred by both the petitioners that on 13.05.2006 at about 7.00 pm, Mr.Praveen Kumar was coming from Tehri Gharwal to his residence at Village Ghitorni, New Delhi in the Tata Sumo bearing registration number DL3CAJ6195 driven by Mr.Praveen Kumar. Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 2 of 41 :: When they reached near Khatauli within the jurisdiction of District Muzzaffar Nagar, U.P., one bus bearing registration number UHN 2190 driven by its driver in drunken condition at a high speed, recklessly, negligently struck against the Tata Sumo as a result of which all the occupants of the Tata Sumo were injured. Respondent number 1/driver fled from the spot. Mr.Praveen Kumar alongwith other occupants /injured were taken to Khatauli Hospital where they were treated and Mr.Praveen Kumar succumbed to his injuries. Case FIR Number 130/06 under sections 279/337/338/427 of the Indian Penal Code (hereinafter referred to as the IPC) was lodged with Police Station Kahatuli District, Muzaffar Nagar, U.P. against respondent number 1. Mr.Praveen Kumar was 23 years and was a driver by profession / self employed and earning Rs.4,000/per month. Both the respondents and being the driver and owner respectively of the offending vehicle i.e. bus bearing registration number UHN2190 are liable under M.V.Act. The petitioners have claimed the compensation of Rs.Twenty Lacs.
4. Summons of the case were served upon both the Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 3 of 41 :: respondents and pursuant thereto they appeared before the Court and are contesting the case.
5. In the written statement filed on behalf of respondent numbers 1 and 2, all the averments made in the petition are controverted and rebutted. The petitioners are not the LRs of the deceased and have no locus standi for filing the present petition and as such the petition is liable to be dismissed. The petition is false, frivolous and fictitious. It was the deceased who was rash and negligent in driving his vehicle as he overtook a tractor and came on the wrong side of the road and struck against the bus. The respondents are not liable to pay any compensation to the petitioners and prayer for the dismissal of the petition is made.
6. The learned predecessor of this court did not award any interim compensation to the petitioners.
7. Vide order dated 30.09.2009 of the learned predecessor, the following issues were framed: Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 4 of 41 :: (1) Whether the deceased died in the road accident on 13.05.2006 by the offending vehicle no. UHN2170 was being driven by respondent no. 1 in rash and negligent manner and owned by respondent no. 2? OPP.
(2) Whether the petitioners are entitled for compensation, if so, to what amount and from whom? OPP (3) Relief.
8. In order to proof their case, the petitioners have examined Mr.Sachin Kumar, an eye witness of the accident, as PW1 and petitioner number 1, Mr.Chander Pal, as PW2. Respondents have examined respondent number 1, Mr.Raj Kumar, as RW1 in support of their contentions.
9. PW1, Mr.Sachin Kumar, has filed his affidavit as his examination in chief and has deposed on the lines of the petition. He has deposed that he is an eye witness of the accident and on 13.05.2006 at about 6.00 pm, Mr.Praveen Kumar who was coming from Tehri Gharwal to his residence at Village Ghitorni, New Delhi in Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 5 of 41 :: the Tata Sumo bearing registration number DL3CAJ6195 driven by him. When they reached near Khatauli within the jurisdiction of District Muzzaffar Nagar, U.P., one bus bearing registration number UHN2190 driven by its driver in drunken condition at a high speed, recklessly, negligently struck against the Tata Sumo as a result of which all the occupants of the Tata Sumo were injured. Respondent number 1/driver fled from the spot. Mr.Praveen Kumar alongwith other occupants /injured were taken to Khatauli Hospital where they were treated and Mr.Praveen Kumar succumbed to his injuries. In his cross examination, he has denied that the accident was caused by Tata Sumo while overtaking the other vehicles. He has denied that he was not sitting in the vehicle and had not seen the accident.
10. PW2, Mr.Chattar Pal, has filed his affidavit as his examination in chief and has deposed on the lines of the petition. He has deposed that on 13.05.2006 at about 6.00 pm, Mr.Praveen Kumar who was coming from Tehri Gharwal to his residence at Village Ghitorni, New Delhi in the Tata Sumo bearing registration number DL3CAJ6195 driven by him. When they reached near Khatauli Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 6 of 41 :: within the jurisdiction of District Muzzaffar that on 13.05.2006 at about 7.00 pm, Mr.Praveen Kumar was coming from Tehri Gharwal to his residence at Village Ghitorni, New Delhi in the Tata Sumo bearing registration number DL3CAJ6195 driven by Mr.Praveen Kumar. When they reached near Khatauli within the jurisdiction of District Muzzaffar Nagar, U.P., one bus bearing registration number UHN 2190 driven by its driver in drunken condition at a high speed, recklessly, negligently struck against the Tata Sumo as a result of which all the occupants of the Tata Sumo were injured. Respondent number 1/driver fled from the spot. Mr.Praveen Kumar alongwith other occupants /injured were taken to Khatauli Hospital where they were treated and Mr.Praveen Kumar succumbed to his injuries. Mr.Praveen Kumar was 23 years and was a driver by profession / self employed and earning Rs.4,000/per month. Both the respondents and being the driver and owner respectively of the offending vehicle i.e. bus bearing registration number UHN2190 are liable under M.V.Act.
11. RW1, Mr.Ravi Kumar, the respondent number 1, has filed his affidavit as his examination in chief and has deposed on the lines of Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 7 of 41 :: the written statement. In his cross examination, he has admitted that he was driving the offending vehicle i.e. bus bearing registration number UHN2170 on 13.05.2006 and was fully authorized by U.P.Roadways to drive the same.
12. I have heard the arguments of the counsel for the petitioners as well as the respondents at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
13. After, careful perusal of the record, my findings on the issues are as follows:
ISSUE NUMBER 1:
14. Issue number 1 is....... Whether the deceased died in the road accident on 13.05.2006 by the offending vehicle no. UHN2170 was being driven by respondent no. 1 in rash and negligent manner and owned by respondent no. 2? OPP.
Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 8 of 41 ::
15. As the petition is under section 166 of the MV Act, the rashness and negligence of the offending driver is required to be proved by the petitioners.
16. Section 140 of the MV Act reads as:
Liability to pay compensation in certain cases on the principal of no fault (1) Where death of permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death of disablement in accordance with the provisions of this section.
(2) The amount of compensation which shall be payable under sub section(1) in respect of the death of any person shall be a fixed sum of (fifty thousand rupees) and the amount of compensation payable under that subsection in respect of the permanent disablement of any person shall be a fixed sum of (twentyfive thousand rupees).
(3) In any claim or compensation under subsection (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.
(4) A claim for compensation under subsection (1) shall not be Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 9 of 41 :: defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. (5) Notwithstanding anything contained in subsection (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force:
Provided that the amount of such compensation to be given under any other law shall be reduced from the `amount of compensation payable under this section or under section 163A.
17. Section 166 of the MV Act reads as:
Application for compensation: (1) An application for compensation arising out of an accident of the nature specified in subsection (1) of section 165 may be made
1. by the person who has sustained the injury; or
2. by the owner of the property; or
3. where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
4. by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased Suit Number: 267/09.
Unique Case ID Number: 02403C147432009. Chhatar Pal and another v. Raj Kumar and another. :: Page 10 of 41 :: have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who ;have not so joined, shall be impleaded as respondent to the application.
(2) Every application under subsection (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
(4) The Claims Tribunal shall treat any report of accidents forwarded to it under subsection (6) of section 158 as an application for compensation under this Act.
18. I find on perusal of the certified copies of the criminal case record of FIR number 332/05 under sections 279/337/338/304A of the IPC with Police Station Dadri, U.P., Ex.PW2/1 to 7, charge sheet, mechanical inspection report, site plan, post mortem report, etc. that the offending vehicle is mentioned as bus bearing registration number Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 11 of 41 :: UHN2170 and its driver/accused is respondent number 1.
19. The claim of the respondents that respondent number 1 has been falsely implicated in the present case to help the petitioners is not tenable as no one is above the law and no one can be punished without evidence and neither the police nor the Court can be made to deviate from the law.
20. Proceedings under the MV Act are not akin to proceedings in a civil Court and hence strict rules of evidence are not required to be followed in this regard. Certified copies of the criminal Court record such as FIR etc. are sufficient proof to reach the conclusion that driver was negligent. It is not necessary for the petition to prove rashness and negligence of the driver/ respondent where there is no eye witness as the same can be proved by documents such as the FIR to show that his vehicle was involved in the accident. (Reliance can be placed upon the judgment of the Delhi High Court in the case reported as Union of India v.Rajo and others, 116 (2005) DLT 226). Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 12 of 41 ::
21. The Supreme Court in its judgment in the case reported as N.K.V.Bros. (P) Ltd. v. M.Karumai Ammal & Ors. etc., in Supreme Court Cases on Motor Accident Claims at page 685 has observed that Court/Tribunal should not succumb to niceties technicalities and mystic. Special care must be taken to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or obscurity there. Except in plain cases, culpability must be inferred from circumstances where it is fairly reasonable.
21. In order to prove the rash and negligent driving of the offending vehicle i.e. bus bearing registration number UHN2170 by respondent number 1 in the accident, the petitioners have produced and proved the certified copies of the criminal case record and examined an eye witness, PW1. The charge sheet, site plan, FIR, post mortem report, etc Ex.PW2/1 to Ex.PW2/7, have also proved on the record which are not controverted.
22. It can be seen from the criminal case record that the IO has Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 13 of 41 :: reached the conclusion after investigation that the driver of the offending vehicle is respondent number 1 and he was driving the offending vehicle in a rash and negligent manner and respondent number 1 is being prosecuted. It is clear that after due investigation, it has been concluded that it is the respondent number 1 and none else who has caused the accident.
23. PWs 1 and 2 have categorically deposed that respondent number 1 had caused the accident driving the offending vehicle i.e. bus bearing registration number UHN2170 in a rash and negligent manner resulting in the death of the deceased Mr.Praveen Kumar. They have assigned a very clear and specific role to respondent number 1. I do not find anything material in their lengthy cross examination which could indicate the respondent number 1 was not driving the offending vehicle in a rash and negligent manner. In fact there is practically no cross examination of both the PWs.
24. Respondent numbers 1 and 2 apparently did not care to appear before the IO of the criminal case, learned Magistrate or any Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 14 of 41 :: authority to inform or complain that respondent number 1 has been falsely implicated. Neither respondent number 1 nor respondent number 2 have approached the High Court for quashing the FIR.
25. The conduct of respondent number 1 in the present matter appears to indicate that the accident has been caused by him. It cannot be disputed that respondent number 1 is facing trial in a criminal case of accident and even the police investigation has concluded that he is the culprit.
26. It also cannot be ignored that when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally nondiscrepant. But Courts should bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 15 of 41 :: (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
27. There are no contradictions in the evidence of the PWs whose evidence is consistent and corroborative.
28. The petitioners have also produced and proved the certified copies of the criminal case record which includes the final report under section 173 Cr.P.C./ charge sheet, FIR etc. wherein it is specifically mentioned that the offending vehicle i.e. bus bearing registration number UHN2170 was driven in a rash and negligent manner by respondent number 1 and has caused the accident due to which the deceased Mr.Praveen Kumar has received fatal injuries, ruqqa, the FIR registered regarding the accident, site plan, post mortem report of the deceased, etc.
29. The claim of the petitioners that the deceased had died due to the injuries received by him in an accident caused by the rash and Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 16 of 41 :: negligent driving of the offending vehicle i.e. bus bearing registration number UHN2170 by the respondent number 1 appears to be absolutely correct as proved from the criminal case record. All the above documents show that respondent number 1 is being prosecuted for rash and negligent driving of the offending vehicle and causing accident due to which the deceased had received fatal injuries.
30. PW1 is an eye witness of the accident and has categorically deposed on oath regarding the offending vehicle being driven in a rash and negligent manner by respondent number 1 due to which the accident had occurred in which the deceased Mr.Praveen Kumar received fatal injuries and died. Nothing material has come forth in his cross examination which could shatter the veracity of the case or falsify the version of the petitioners. The fact that respondent number 1 was indeed rashly and negligently driving the offending vehicle resulting in the death of the deceased Mr.Praveen Kumar clearly proved by the unshatterred and unassailed evidence of PWs as well as the criminal case record. The respondents have also been able to show otherwise to substantiate their averments.
Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 17 of 41 ::
31. It is settled proposition that in case the charge sheet has been filed against the driver of the alleged offending vehicle, it is sufficient proof regarding the involvement of the vehicle and factum of accident unless and until denied by the respondent. In this regard reference can also be made to Bala & Ors v. Moti Chand Gupta & Others 2003 VIII AD (Delhi) 256, the Delhi High Court held as under: Plain reading of Section 158(6) and Section 166 (4) of the Act shows that even the charge sheet submitted by the Police Officer to the Tribunal is to be treated as an application for compensation by the claims tribunal. Once the chargesheet is forwarded to the claims tribunal, the tribunal is immediately made aware that the accident has been caused by the offending vehicle and the tribunal in that case is not required to go into any further technicality to direct the claimants to still prove that the offending vehicle was involved in the accident unless, of course, the party opposing the petition denies the involvement of such vehicle.
32. Arrest of the accused/ respondent number 1, his vehicle being impounded, his being prosecuted and his not making any complaint of alleged false implication clearly point towards the guilt Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 18 of 41 :: of respondent number 1. These facts in totality indicate that the deceased had received grievous injuries in the road accident due to the rash and negligent driving of respondent number 1. The contentions of the respondents remain unproved.
33. There is nothing on record to indicate that the respondent number 1 was not driving the offending vehicle in a rash and negligent manner or that he has not caused the accident.
34. The concept of rashness and negligence in the present case is entirely different from the criminal proceedings. In the present case, the rashness and negligence is only one of the species of the cause of action.
35. A criminal case has been registered vide FIR number 130/2006 under sections 279/337/338/304A/427 of the IPC with Police Station Khautauli, District Muzaffar Nagar, U.P. against respondent number 1 which supports the claim of the petitioners that it was due to rash and negligent act of the driver of offending vehicle i.e. Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 19 of 41 :: respondent number 1 that the accident had taken place resulting in the death of the deceased. A perusal of the criminal record also shows that the police investigation has also concluded that the accident had taken place due to rash and negligent act of the driver of the offending vehicle i.e. respondent number 1.
36. It is evident that respondent number 1 was rash and negligent in driving his vehicle i.e. bus bearing registration number UHN2170, FIR number 130/2006 under sections 279/337/338/304 A/427 of the IPC with Police Station Khautauli, District Muzaffar Nagar, U.P., which hit Tata Sumo bearing registration number DL 3CAJ6195 in which the deceased Mr.Praveen Kumar as driver and eye witness, PW1, Mr.Sachin Kumar was travelling.
37. Even if there was no eye witness, then also the final report in the criminal case is sufficient proof to show the rash and negligent driving of the offending vehicle by respondent number 1. (Reliance can be placed upon the judgments reported as Union of India v. Rajo & ors., 116 (2205) DLT 226; Basant Kaur and others v. Chatarpal Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 20 of 41 :: Singh and others, 2003 ACJ 369).
38. The respondents, although have examined RW1, but have failed to deny the factum of the offending vehicle being driven rashly and negligently by respondent number 1 and causing accident in which the deceased has expired. Respondents have failed to bring anything on the record which could show that the deceased was trying to overtake vehicles and had come on the wrong side and struck his vehicle against the offending vehicle. In fact RW1 has admitted that he was driving the offending vehicle. It is also not in dispute that respondent number 1 is the driver and respondent number 2 is the owner of the offending vehicle i.e. bus bearing registration number UHN2170.
39. In these circumstances, I consider that the petitioners have duly proved that the deceased Mr.Praveen Kumar has received injuries resulting in his death due to road accident caused by the offending vehicle i.e. bus bearing registration number UHN2170 being driven by respondent number 1 in a rash and negligent manner. Therefore, Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 21 of 41 :: the testimonies of petitioners' witnesses considered along with the other documents i.e. the FIR registered in this case, charge sheet, post mortem report, etc., I am of the considered opinion that the deceased Mr.Praveen Kumar has received injuries resulting in his death due to road accident caused by the offending vehicle i.e. bus bearing registration number UHN2170 being driven by respondent number 1 in a rash and negligent manner.
40. I hereby hold that Mr.Praveen Kumar suffered fatal injuries on 13.05.2006 due to rash and negligent driving of bus bearing registration number UHN2170 on the part of respondent number 1.
41. Issue number 1 is accordingly decided in favour of the petitioners and against the respondents.
ISSUE NUMBER 2:
42. Issue number 2 is............. Whether the petitioners are entitled for compensation, if so, to what amount and from whom? OPP.
Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 22 of 41 ::
43. The petitioners have claimed that they are the only legal representatives of the deceased Mr.Praveen Kumar. PW2 has also similarly deposed in his affidavit and there is no cross examination regarding the same. It is clear that Mr.Chattar Pal (father) and Ms.Raj Rani (mother) are the only legal heirs of the deceased.
44. However, in view of In the judgment of the Supreme Court in the case of Smt.Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., in Civil Appeal No.3483 of 2008, decided on April 15, 2009 (arising out of SLP (C) No.8648 of 2007) Smt.Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., of the Apex Court not only is available on the official website of the Apex Court i.e. supreme court of India.nic.in and also is reported in as 2009 (6) Scale 129; 2009 ACJ 129 and also relied upon in the Delhi High Court in its order dated 08.05.2009 in MAC. App.No.842/2003 in FAO No.842/2003, in the case of Rajesh Tyagi & Ors. v. Jagbir Singh & Ors. decided on 21.04.2009 wherein the law of compensation, structured formula and appropriate multiplier have been changed, overruling the earlier law as Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 23 of 41 :: well as giving a new clarification to the Second Schedule, it has been observed that the father and siblings (brother and sister) of the deceased are not the dependents of the deceased and are not entitled to any compensation under the MV Act.
45. Therefore, only petitioner number 2 being the mother of the deceased is entitled to the compensation under the MV Act. LOSS OF DEPENDENCY:
46. The petitioner number 1, as PW2, has deposed in his affidavit filed as his examination in chief that the deceased, Mr.Praveen Kumar, who was aged 23 years on the date of accident was a driver/self employed and he was earning Rs.4,000/ per month. There is nothing brought on the record which could show otherwise as there is nothing material in his cross examination by respondents who have also not led any evidence of their own to rebut the same. The copy of the driving licence of the deceased Mr.Praveen Kumar, Ex.PW2/7, shows his date of birth as 07.12.1984 which makes his age on the date of accident i.e. 13.05.2006 as 21 years and five months and Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 24 of 41 :: nineteen days.
47. Therefore, keeping in view the evidence of petitioner number 1, PW2, and the documents, it is clear that the deceased was aged 21 years plus at the time of his demise.
48. Further, as regards, his income, it is averred in the petition and deposed in the evidence of PW2 as well as PW1 that the deceased was a driver and was driving Tata Sumo bearing registration number DL3CAJ6195 when the accident had occurred. This fact is also admitted in the written statement. There is no cross examination of PW2 regarding the income of the deceased as Rs.4,000/ per month.
49. Therefore, the income of the deceased is held to be Rs.4,000/ per month.
50. In Sarla Verma's judgment, it has been observed in paragraph number 9 of the above judgment that:
Basically only three facts need to be established by the claimants for assessing compensation in the case of death : (a) age of the Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 25 of 41 :: deceased; (b) income of the deceased; and the (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by the following well settled steps:
Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand.
Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers Suit Number: 267/09.
Unique Case ID Number: 02403C147432009. Chhatar Pal and another v. Raj Kumar and another. :: Page 26 of 41 :: with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the `loss of dependency' to the family.
Thereafter, a conventional amount in the range of Rs. 5,000/ to Rs.10,000/ may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5,000/ to 10,000/ should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also added.
Question (i) addition to income for future prospects
51. In para 10 of Sarla Verma's judgment, it was observed that:
Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation. The question is whether actual income at the time of death should Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 27 of 41 :: be taken as the income or whether any addition should be made by taking note of future prospects. In Susamma Thomas, this Court held that the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand (annual contribution to the dependants); and that where the deceased had a stable job, the court can take note of the prospects of the future and it will be unreasonable to estimate the loss of dependency on the actual income of the deceased at the time of death. In that case, the salary of the deceased, aged 39 years at the time of death, was Rs.1032/ per month.
Having regard to the evidence in regard to future prospects, this Court was of the view that the higher estimate of monthly income could be made at Rs.2000/ as gross income before deducting the personal living expenses. The decision in Susamma Thomas was followed in Sarla Dixit v. Balwant Yadav [1996 (3) SCC 179], where the deceased was getting a gross salary of Rs.1543/ per month. Having regard to the future prospects of promotions and increases, this Court assumed that by the time he retired, his earning would have nearly doubled, say Rs.3000/. This court took the average of the actual income at the time of death and the projected income if he had lived a normal life period, and determined the monthly income as Rs.2200/ per month. In Abati Bezbaruah v. Dy. Director General, Geological Survey of India [2003 (3) SCC 148], as against the actual salary income of Rs.42,000/ per annum, (Rs.3500/ per month) at the time of accident, this court assumed the income as Rs.45,000/ per annum, having regard to the future prospects and career Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 28 of 41 :: advancement of the deceased who was 40 years of age.
52. In paragraph number 19 of the Sarla Verma's judgment, it is observed:
In New India Assurance Co. Ltd. vs. Charlie [2005 (10) SCC 720], this Court noticed that in respect of claims under section 166 of the MV Act, the highest multiplier applicable was 18 and that the said multiplier should be applied to the age group of 21 to 25 years (commencement of normal productive years) and the lowest multiplier would be in respect of persons in the age group of 60 to 70 years (normal retiring age). This was reiterated in TN State Road Transport Corporation Ltd. vs. Rajapriya [2005 (6) SCC 236] and UP State Road Transport Corporation vs. Krishna Bala [2006 (6) SCC 249]. The multipliers indicated in Susamma Thomas, Trilok Chandra and Charlie (for claims under section 166 of MV Act) is given below in juxtaposition with the multiplier mentioned in the Second Schedule for claims under section 163A of MV Act (with appropriate deceleration after 50 years :
Suit Number: 267/09.
Unique Case ID Number: 02403C147432009. Chhatar Pal and another v. Raj Kumar and another. :: Page 29 of 41 :: Age of the Multiplier Multiplier Multiplier Multiplier Multiplier deceased scale as scale as scale in Trilok specified in actually used in envisaged in adopted by Chandra as second Second Susamma Trilok clarified in column in the Schedule to M. Thomas Chandra Charlie Table in II V Act ( as seen schedule to from the M. V Act quantum of compensation 1 2 3 4 5 6 Upto 15yrs 15 20 15 to 20yrs 16 18 18 16 19 21 to 25yrs 15 17 18 17 18 26 to30yrs 14 16 17 18 17 31 to 35yrs 13 15 16 17 16 36 to40yrs 12 14 15 16 15 41 to45yrs 11 13 14 15 14 46 to 50yrs 10 12 13 13 12 51 to 55yrs 9 11 11 11 10 56 to 60yrs 8 10 9 8 8 61 to 65yrs 6 8 7 5 6 Above65yrs 5 5 5 5 5
53. In para 25 of Sarla Verma's judgment, it was observed that:
The appellants next contended that having regard to the fact that the family of deceased consisted of 8 members including himself and as the entire family was dependent on him, the deduction on account of personal and living expenses of the deceased should be neither the standard onethird, nor onefourth as assessed by Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 30 of 41 :: the High Court, but oneeighth. We agree with the contention that the deduction on account of personal living expenses cannot be at a fixed onethird in all cases (unless the calculation is under section 163A read with Second Schedule to the MV Act). The percentage of deduction on account personal and living expenses can certainly vary with reference to the number of dependent members in the family. But as noticed earlier, the personal living expenses of the deceased need not exactly correspond to the number of dependents. As an earning member, the deceased would have spent more on himself than the other members of the family apart from the fact that he would have incurred expenditure on travelling / transportation and other needs. Therefore we are of the view that interest of justice would be met if onefifth is deducted as the personal and living expenses of the deceased. After such deduction, the contribution to the family (dependents) is determined as Rs.57,658/ per annum. The multiplier will be 15 having regard to the age of the deceased at the time of death (38 years). Therefore the total loss of dependency would be Rs.57,658 x 15 = Rs.8,64,870/.
54. In para 26 of the judgment, it was observed that:
Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be onethird (I/3rd) where the number of dependent family members is 2 to 3, oneforth (1/4th) where the number of dependent family members is 4 to 6, and onefifth (1/5th) where Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 31 of 41 :: the number of dependent family members exceed six.
55. It was further observed that:
In addition, the claimants will be entitled to a sum of Rs.5,000/ under the head of `loss of estate' and Rs.5000/ towards funeral expenses. The widow will be entitled to Rs.10,000/ as loss of consortium. Thus, the total compensation will be Rs.8,84,870/. After deducting Rs.7,19,624/ awarded by the High Court, the enhancement would be Rs.1,65,246/.
56. The age of the mother of the deceased, petitioner number 2 was 44 years as on the date of demise of Mr.Praveen Kumar as is clear from the copy of the ration card which shows her year of birth as 1962 which indicates that she was 44 years old on 13.05.2006 i.e. the date of accident.
57. In the judgment reported as New India Assurance Company Limited v. Shanti Pathak, III (2007) ACC 505 (SC), it was held that the multiplier to be adopted is to be determined on the basis of the age of the claimant and the age of the deceased which ever is higher.
Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 32 of 41 ::
58. As the age of the mother of the deceased at the time of his demise was 44 years, the multiplier of 14 is to be applied.
59. The personal and living expenses of the deceased would be one half of his income as he was unmarried, in terms of Sarla Verma's judgment.
60. Therefore, the total loss of dependency would be the annual income into the appropriate multiplier into deduction of personal expenses of the deceased i.e. Rs.4,000/ x 12 (annual income) x 14 (multiplier) x 1/2 (personal expenses) which comes to Rs.3,36.000/.
61. Hence, the petitioners number 2 is entitled to Rs.3,36,000/ for loss of financial dependency.
LOSS OF LOVE AND AFFECTION:
62. The petitioner number 2 has lost her young son aged 21 years in the present accident. The loss of love and affection and the Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 33 of 41 :: emotional trauma that the family of the deceased have undergone cannot be assessed in monetary terms. Money cannot compensate the loss of love and affection of a son that petitioner number 2 had lost due to his death in the accident. However, considering the overall facts and circumstances of the case, I award a sum of Rs.10,000/ to the petitioner number 2 towards loss of love and affection. MEDICAL EXPENSES:
63. The petitioners have not filed nor proved any medical bills of the deceased.
64. Therefore, no amount is awarded under the heading of medical expenses to the petitioners.
LOSS OF FUTURE PROSPECTS:
65. The petitioners have although claimed loss of future prospects, but in view of Sarla Verma's case, since the deceased was employed privately, I am not inclined to grant any amount under the heading of loss of future prospects.
Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 34 of 41 :: PAIN AND SUFFERING:
66. The petitioners have although claimed compensation for pain and suffering, but in view of Sarla Verma's case, I am not inclined to grant any amount under this heading. FUNERAL EXPENSES:
67. Rs.10,000/ is awarded on account of funeral expenses. LOSS TO ESTATE:
68. An amount of Rs.10,000/ on account of loss to estate to petitioner number 2 is also granted as the deceased, Mr.Praveen Kumar, had he remained alive, he would have made some property. TOTAL COMPENSATION:
69. In the petition, the petitioner number 2 is entitled to the following compensation in the present petition:
Loss of dependency : Rs.3,36,000/.
Loss of love and affection : Rs.10,000/
Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 35 of 41 ::
Medical expenses : Nil.
Loss of future prospects : Nil.
Pain and suffering : Nil.
Funeral expenses :Rs.10,000/
Loss to estate :Rs.10,000/
Total compensation
: Rs.3,66,000/.
LIABILITY OF RESPONDENTS NUMBERS 1 AND 2:
70. Respondents numbers 1 and 2 being the driver and owner of the offending vehicle respectively are liable to pay compensation to the petitioners.
RELIEF:
71. Petitioner number 2 entitled to Rs.3,66,000/ as compensation. No interim compensation was awarded to the petitioners by the learned predecessor of this Court. The total compensation which now is to be given to the petitioner number 2 is is Rs.3,66,000/. The petitioner number 2 is also entitled to the interest at the rate of 7.5% per annum from the date of filing of Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 36 of 41 :: petition i.e. 21.04.2008 till its realization.
72. Out of this amount of Rs.3,66,000/, Rs.2,00,000/ be given to the petitioner number 2, Ms.Raj Rani, in cash for her utilization and the remaining amount of Rs.1,66,000/ be kept in the form of FDR with a nationalized bank for the period of three years without the facility of advance / loan or withdrawal. However, the petitioner number 2 will be entitled to monthly or quarterly interest as applicable.
73. Respondent numbers 1 and 2 directed to directly deposit the award amount with the Nodal Officer of UCO Bank, Delhi High Court Branch, New Delhi within 30 days. The driver/owner of the offending vehicle are also directed to place on record the proof of deposit of the award amount, the notice of the deposit to the claimant and the calculation of interest in the Court within 30 days from today.
74. In case the respondents fail to do so, General Manager of Insurance Company will file reasons for noncompliance. In case of further delay, the respondents will deposit the cheque along with the Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 37 of 41 :: cost of Rs.5,000/ without any further directions as per judgment of New India Assurance Company Ltd. v. Kashmiri Lal, 2007 ACJ 688.
75. Ahlmad/Nazir will report to the undersigned if the cheques in this case are not received within 30 days of passing of this judgment. Ahlmad/Nazir to note the particulars of the award amount etc. in his register today.
76. The petitioner number 2 will file two sets of photographs along with her specimen signatures out of which one set be sent to the Nodal Officer of the Bank along with copy of the award by the Ahlmad/Nazir and the second set shall be retained in the Court for further reference. The photographs be got stamped and be sent to the Bank. The proof of residence and details of the bank account be also provided by the petitioner number 2 within seven days to the Ahlmad/Nazir.
77. Aforesaid fixed deposits are to be made by UCO Bank, Delhi High Court Branch, New Delhi in the following manner:
Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 38 of 41 :: (1) The UCO Bank, Delhi High Court Branch shall open separate Savings Accounts in the name of claimant 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 claimant after due verification and the Bank shall issue photo identity Card /Pass Books with attested photographs to claim to facilitate her identity.
(4) No cheque book be issued to the claimant without the permission of this Court.
(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 claimant alongwith the photocopy of the FDRs. (7) The original Fixed Deposit Receipts shall be handed over to the claimant 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 UCO Bank according to the convenience of the claimant.
(10) In terms of directions contained in case of UOI versus Nanisiri, in MAC Appeal No. 682/2005, order dated 13/01/2010, of Hon'ble Mr. Justice J. R. Midha, Respondent number 4 is Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 39 of 41 :: directed to directly deposit the award sum with Manager UCO Bank, Delhi High Court Branch within 30 days through its nodal officer and the Manager concerned of UCO Bank, Delhi High Court Branch to keep the specified amount aforesaid in fixed deposits in terms of the award and release the balance amount by transferring the same to the Saving Bank Accounts of the petitioner/ claimant. Insurance Company to also file proof of deposit of award sum, also within said period. Manager UCO Bank, Delhi High Court Branch to also furnish compliance report within 15 days of deposit of award sum. Claimant to do the necessary formalities in respect of the bank account(s).
78. Ahlmad/Nazir to keep the copy of Award in a miscellaneous file for awaiting compliance report from all concerned, which be put up on 03.12.2010.
79. Copy of the judgment be given dasti to the respondents/their counsel for compliance and copy of this order and information be also sent to the respondents.
80. One copy of the judgment also be given to the counsel for the petitioners, dasti, as requested.
Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 40 of 41 ::
81. The file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 18th day of November, 2010. Judge, MACT02, New Delhi. Suit Number: 267/09.
Unique Case ID Number: 02403C147432009.
Chhatar Pal and another v. Raj Kumar and another. :: Page 41 of 41 ::