Delhi District Court
Smt. Kusum & Ors. vs . Ajay Kumar & Ors. on 7 November, 2014
Smt. Kusum & Ors. Vs. Ajay Kumar & Ors.
IN THE COURT OF SH. K S MOHI : PRESIDING OFFICER : MACT
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Petition No. : 238/13
FIR No. : 211/11, PS : S. J. Enclave
Unique Case ID : 02406C0061532013
1. Smt. Kusum
W/o Late J S Maan ..... Wife
2. Akshay
S/o Late J S Maan ..... Son
3. Priya
D/o Late J S Maan ..... Daughter
All R/o 257, MIG Flats,
East Loni Road, Shahdara, Delhi.
..... Petitioners
Versus
1. Ajay Kumar
S/o Late Chater Singh
R/o WZ583B, Vill. Naraina,
Delhi ..... Driver
2. Delhi Transport Corporation
Mayapuri Depot, Delhi ..... Owner
3. United India Insurance Co. Ltd.
Delhi ..... Insurer
..... Respondents
Date of Institution : 23.09.2011
Date of reserving of judgment/order : 27.10.2014
Date of pronouncement : 07.11.2014
Petition No. : 238/13, FIR No. : 211/11, PS : Safdarjung Enclave Page No. 1 of 17
Smt. Kusum & Ors. Vs. Ajay Kumar & Ors.
J U D G M E N T :
1. A Detailed Accident Report has been filed by SHO of the Police Station Safdarjung Enclave for untimely death of Jasbir Singh Maan in a road accident on 10.08.2011 at about 10.05 AM at Ring Road, Nauroji Nagar Bus Stand near CNG Petrol Pump, Delhi. This DAR was converted into regular claim petition vide order dated 27.02.2013.
2. Brief facts of the case are that on 10.08.2011 at about 10.05 AM when the deceased was boarding the bus bearing no. DL 1P C 1549 (Green Colour bus) from the back gate at Nauroji Nagar bus stand, near CNG Pump, Safdarjung Enclave, New Delhi, in the meantime, the respondent no.1 suddenly drove the said bus at a high speed and in a rash and negligent manner, due to which the deceased fell down on the road and sustained multiple injuries on his head and other parts of his body. He was taken to JPN Apex Trauma Center where he was declared brought dead at about 10.23 AM. His postmortem report bearing no. TC580/11 dated 10.08.2011 was prepared. A case vide FIR no. 211/11 was registered at the police station Safdarjung Enclave. It was stated that the deceased was having a good health at the time of accident. He was 50 years of age. He was a Govt. Employee and working as Meteorologist GradeII in India Meteorological Department. He was earning Rs. 47,485/ p.m. It is stated that the offending vehicle was owned by respondent no.2 and it was insured with respondent no.3.
Petition No. : 238/13, FIR No. : 211/11, PS : Safdarjung Enclave Page No. 2 of 17 Smt. Kusum & Ors. Vs. Ajay Kumar & Ors.
3. Notice of the petition was given to the respondents. Respondent no.1 and 2 filed the reply/written statement stating that the accident took place due to negligence of the deceased. It is stated that the driver of the bus was driving carefully and cautiously. He was not at all hit by the bus. He had fallen due to his own fault while boarding the bus. It is further stated that the bus was taking the passenger of another bus of DTC which had broken down due to some mechanical fault and thus the bus was over crowded because of the passengers of two buses and the deceased could not board the bus easily and fell down on the road and got injury on his head. Thus, the driver was not at all involved in any negligent driving which caused injury to the deceased. The driver of the bus bearing no. DL 1P C 1549 should not be held liable for the negligent driving. The DTC bus has been falsely implicated in the FIR no. 211/11 merely to get compensation from the insurance company. Respondent no.3 also denied the contention of the LRs of the deceased. It however, admitted that the offending bus was insured with it vide policy no. 0401003110P001398487 for the period from 04.11.2010 to 03.11.2011.
4. Vide order dated 27.02.2013 following issues were framed :
1. Whether deceased suffered fatal injuries in an accident which took place on 10.08.2011 at about 10.05 AM involving DTC bus bearing no. DL 1P C 1549 due to rash and negligent driving of Ajay Kumar, owned by DTC and Petition No. : 238/13, FIR No. : 211/11, PS : Safdarjung Enclave Page No. 3 of 17 Smt. Kusum & Ors. Vs. Ajay Kumar & Ors.
insured with United India Insurance Co. Ltd.?........OPP.
2. Whether petitioners are entitled to compensation? If so, to what amount and against which of the respondents?
3. Relief.
5. To substantiate their case, petitioners examined Sh. S N Thakur, AMII, India Meteorological Department, Lodhi Road, New Delhi as PW2. He proved his authorisation letter Ex.PW2/A and the last salary certificate of the deceased Ex.PW2/B. Petitioner no.1 examined herself as PW2. She tendered in evidence her affidavit Ex.PW2/A. She also tendered the documents Ex.PW2/1 to Ex.PW2/11. Respondent no.1 examined himself as R1W1. He tendered in evidence his affidavit Ex.R1W1/1. He also tendered the documents Ex.R1W1/A and Ex.R1W1/B.
6. I have heard the arguments advanced by Ld. counsel Sh. Ajay Atri for the petitioners and Ms. Inderjeet Kaur for respondent no.3 and perused the record. My findings on the issues are as under :
I S S U E No. 1
7. It is well settled law that where petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and Petition No. : 238/13, FIR No. : 211/11, PS : Safdarjung Enclave Page No. 4 of 17 Smt. Kusum & Ors. Vs. Ajay Kumar & Ors.
negligent driving. To prove rash and negligent driving in a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just rational and reasonable on the basis of enquiry. The proceedings under Motor Vehicles Act are not akin to the proceedings in a civil suit. Further, roving enquiry is not required to prove the rashness and negligence on the part of the driver as has been held in Kaushumma Begum and others Vs New India Assurance Co. Ltd. 2001 ACJ 421 SC.
8. PW2 Smt. Kusum Lata has stated that on 10.08.2011 at about 10.05 AM when the deceased was boarding the bus bearing no. DL 1P C 1549 (Green Colour bus) from the back gate at Nauroji Nagar bus stand, near CNG Pump, Safdarjung Enclave, New Delhi, in the meantime, the respondent no.1 suddenly drove the said bus at a high speed and in a rash and negligent manner, due to which the deceased fell down on the road and sustained multiple injuries in his head and his entire body. He was taken to JPN Apex Trauma Center where he was declared brought dead at about 10.23 AM. His postmortem report bearing no. TC580/11 dated 10.08.2011 was prepared. A case vide FIR no. 211/11 was registered at the police station Safdarjung Enclave. Nothing material came in her crossexamination favouring the respondents. R1W1 Ajay Kumar has stated that the offending vehicle Petition No. : 238/13, FIR No. : 211/11, PS : Safdarjung Enclave Page No. 5 of 17 Smt. Kusum & Ors. Vs. Ajay Kumar & Ors.
bearing no. DL 1P C 1549 of DTC was insured with United India Insurance Co. Ltd. vide policy no. 0411003110P001398487 for the period from 04.11.2010 to 03.11.2011. It had a valid permit at the time of accident. He stated that he has been falsely implicated in the present case merely to get compensation from the insurance company. He further stated that on 10.08.2011 at about 10.05 AM he was driving very carefully and cautiously. The deceased was not at all hit or touched by the bus. The deceased had fallen due to his own fault while boarding the bus. He further stated that his bus was taking passenger of another bus of DTC which had broken down due to some mechanical fault and thus, the bus was over crowded because of passengers of two buses and the deceased could not board the bus easily and fell on the road and got injury on his head. He further stated that he being the driver of the offending bus should not be held liable for the negligent driving. The DTC bus has been falsely implicated in the FIR no. 211/11 merely to get compensation from the insurance company. He further stated that he was acquitted by the criminal Court vide order dated 28.02.2014. In crossexamination he stated that the number of the bus who broke down due to brake failure was DL 1P C 0283. About 70 passengers of bus bearing no. DL 1P C 0283 boarded his bus. All the passengers of broke down bus had boarded his bus before he started. In fact two buses were behind his bus and one bus which had broke down was standing in front of his bus as a result he was unable to move on. The bus which had broken Petition No. : 238/13, FIR No. : 211/11, PS : Safdarjung Enclave Page No. 6 of 17 Smt. Kusum & Ors. Vs. Ajay Kumar & Ors.
down was unable to take the load and after all the passengers got down from that bus the driver got it aside making way for him. In fact no accident took place with his vehicle. He learned that one person was lying about 5 ft. away from rear gate of his bus who had suffered the attack of epilepsy. Before he started the bus both the gates were closed. He denied that the accident took place due to his rash and negligent driving. He also denied that he had won over the witness namely Gajender Pal Singh in criminal case. A system named GPS is installed in DTC buses which is connected with internet to know about the location, speed and date of the bus.
In the instant case alongwith the Detailed Accident Report, the Investigating Officer has filed the site plan, arrest memo, seizure memo etc. Perusal of FIR reveals that the case was registered on the statement of one Gajender Pal Singh. He stated that on 10.08.2011 at about 10.05 AM one person was boarding the DTC Green Colour bus bearing no. DL 1P C 1549 from its rear gate. In the meantime, the driver of the said bus suddenly drove the bus in a rash and negligent manner due to which the said person fell down on the road and sustained injuries on his head. His name was revealed as J S Maan. He called the police at 100 no. The driver of the offending bus fled away from the spot. In the charge sheet, the respondent no.1 was made an accused. Although, the respondent no.1 was acquitted by the criminal Court but it was due to the fact that the eyewitness Gajender Pal Singh turned hostile. As per the postmortem report the cause of death Petition No. : 238/13, FIR No. : 211/11, PS : Safdarjung Enclave Page No. 7 of 17 Smt. Kusum & Ors. Vs. Ajay Kumar & Ors.
was combined effect of head injuries and hemorrhagic shock due to abdominal injury caused by antemortem blunt force which could be possible in road traffic accident.
Hon'ble High Court of Delhi in case titled ''National Insurance Company Limited V/s Pushpa Rana'' reported as 2009 ACJ 287 has held that whenever criminal proceedings are placed on record on completion of investigation by the police, then that in itself is sufficient proof of the negligent driving of driver of the offending vehicle involved in the accident.
For the foregoing discussions, it is established that Jasbir Singh Maan suffered fatal injuries in an accident on 10.08.2011 at about 10.05 AM involving DTC bus bearing no. DL 1P C 1549 due to rash and negligent driving by respondent no.1. Documents filed on record would show that the offending vehicle was owned by respondent no.2 and it was insured with respondent no.3.
9. Issue no.1 is accordingly decided in favour of the petitioners and against the respondents.
I S S U E No. 2
10. It has been held in a catena of judgments that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair compensation and not a token amount. General principle in calculating such sum of compensation, should be so as to put the injured or legal heirs of a Petition No. : 238/13, FIR No. : 211/11, PS : Safdarjung Enclave Page No. 8 of 17 Smt. Kusum & Ors. Vs. Ajay Kumar & Ors.
deceased in case of fatal accident, in the same position as he would have been, if accident had not taken place. The amount of compensation no doubt cannot bring back the dead but it certainly helps the LR's and dependents to live life with dignity and comfort as they were living during the lifetime of the deceased. The amount of compensation is awarded on the basis of age, the earning capacity and other liabilities of the deceased. The appropriate method of calculating compensation in fatal cases is multiplier method. The Hon'ble Supreme Court in plethora of judgments has laid down that in India, the multiplier method is proper for calculation of compensation.
11. In order to calculate the amount of compensation, the sum is required to be considered under the various heads :
LOSS OF DEPENDENCY :
12. PW2, Smt. Kusum Lata has stated that the deceased was having good health at the time of accident. He was 50 years old. He was a Govt. Employee working as Meteorologist GradeII in India Meteorological Department and was getting a salary of Rs. 47,485/ p.m. He was survived by his wife, one unmarried son and one unmarried daughter. All the petitioners were financially and emotionally dependent on the deceased.
PW2 Sh. S N Thakur, AMII, India Meteorological Department has brought the salary certificate of the deceased Ex.PW2/B. In cross Petition No. : 238/13, FIR No. : 211/11, PS : Safdarjung Enclave Page No. 9 of 17 Smt. Kusum & Ors. Vs. Ajay Kumar & Ors.
examination he stated that the deceased was getting transport allowance of Rs. 1,600/ p.m. As per the salary certificate the deceased was getting Rs. 47,485/ p.m. which included Rs. 1,600/ as transportation charges. This amount needs to be deducted from the gross salary. After deducting Rs. 1,600/ from the gross income, the income comes to Rs. 45,885/ p.m. Thus, the annual income comes to Rs. 5,50,620/ (45,885 x 12). After deducting income tax, the net income of the deceased for calculating the loss of dependency comes to Rs. 5,25,558/. As per the Election Icard the deceased was 48 years of age as on 01.01.2008. The accident took place on 10.08.2011, so he was 51 years of age at the time of accident. The deceased was survived by his wife, one son and one daughter. So, there are three dependents. After deducting onethird towards personal and living expenses, the net income of the deceased for calculating the loss of dependency comes to Rs. 3,50,372/. It was also held in the case of Sarla Verma Vs. DTC 2009 (6) Scale 129 that while calculating the dependency, the multiplier is to be applied with reference to the age of the deceased since he was married. Hence, a multiplier of '11' is taken for calculating the loss of dependency. Using the multiplier of '11', the total loss of dependency comes to Rs. 3,50,372 x 11 = 38,54,092/ which is rounded off to Rs. 38,54,100/. I therefore, award Rs. 38,54,100/ to the petitioners towards "Loss of Dependency".
Petition No. : 238/13, FIR No. : 211/11, PS : Safdarjung Enclave Page No. 10 of 17 Smt. Kusum & Ors. Vs. Ajay Kumar & Ors.
LOVE AND AFFECTION :
13. Petitioners at this stage of their life have lost their husband/father. The love and care which they could have got from him cannot be measured in terms of money. In view of the law laid down in Rajesh & Ors. Vs. Rajbir Singh & Ors. 2013 (6) Scale 563, I award Rs. 1,00,000/ to the petitioners towards "Love and Affection".
LOSS OF CONSORTIUM :
14. It was held in the case "Rajesh & Ors. Vs. Rajbir Singh & Ors. 2013 (6) Scale 563" (Supra) that in legal parlance, consortium is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. The loss of companionship, love, care and protection etc, the spouse is entitled to get, has to be compensated appropriately. It was held that it would only be just and reasonable that the Courts award at least Rs. 1,00,000/ for the loss of consortium. Following the case law (Supra), I award a sum of Rs. 1,00,000/ to the petitioner no. 1 i.e. wife of the deceased towards "Loss of Consortium".
FUNERAL EXPENSES :
15. It was held in the case of "Rajesh & Ors. Vs. Rajbir Singh & Ors. 2013 (6) Scale 563" that the funeral expenses does not mean the fee paid in the Petition No. : 238/13, FIR No. : 211/11, PS : Safdarjung Enclave Page No. 11 of 17 Smt. Kusum & Ors. Vs. Ajay Kumar & Ors.
Crematorium or fee paid for the use of space in the Cemetery. There are many other expenses in connection with the funeral and if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. It will be just, fair and equitable under the head of funeral expenses in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/. Following the case law (Supra), I award Rs. 25,000/ to the petitioners towards "Funeral Expenses". LOSS OF ESTATE :
16. I award a sum of Rs. 10,000/ to the petitioners towards "Loss of Estate".
17. The total compensation in favour of the petitioners is calculated as under :
1) LOSS OF DEPENDENCY = Rs. 38,54,100/
2) LOSS OF LOVE AND AFFECTION = Rs. 1,00,000/
3) LOSS OF CONSORTIUM = Rs. 1,00,000/
4) FUNERAL EXPENSES = Rs. 25,000/
5) LOSS OF ESTATE = Rs. 10,000/ ============ Rs. 40,89,100/ Less : Interim Award vide order dated 12.08.2013 Rs. 50,000/ ============ Rs. 40,39,100/ ============ Petition No. : 238/13, FIR No. : 211/11, PS : Safdarjung Enclave Page No. 12 of 17 Smt. Kusum & Ors. Vs. Ajay Kumar & Ors.
L I A B I L I T Y
18. As the offending vehicle was being driven by respondent no. 1 therefore, primary liability to compensate the petitioners remain with that of respondent no. 1. Since the offending vehicle was owned by respondent no. 2 so, it is vicariously liable to compensate the petitioners. It is an admitted position on record that the offending vehicle was insured with respondent no.3. Therefore, respondent 3 is contractually liable to compensate the petitioners.
19. Issue No. 2 is accordingly decided in favour of the petitioners and against the respondent no. 3.
R E L I E F
20. In view of my findings on issues, I award Rs. 40,39,100/ (Rs. Forty Lakh Thirty Nine Thousand One Hundred only) to the petitioners as compensation with interest @ 9% per annum from the date of filing the petition till realisation of the amount (except the period from 09.01.2014 to 18.02.2014).
: RELEASE OF THE AWARDED AMOUNT : In the share of Petitioner no.1 : (Wife of the deceased)
21. A sum of Rs. 36,39,100/ alongwith the proportionate interest thereon, is awarded to the petitioner no.1 being wife of the deceased.
Out of this awarded amount, a sum of Rs. 30,00,000/ is directed to be deposited in the form of Fixed Deposit in the name of the petitioner no.1 in Petition No. : 238/13, FIR No. : 211/11, PS : Safdarjung Enclave Page No. 13 of 17 Smt. Kusum & Ors. Vs. Ajay Kumar & Ors.
the following phased manner :
1. Rs. 5,00,000/ for a period of 1 years.
2. Rs. 5,00,000/ for a period of 2 years.
3. Rs. 5,00,000/ for a period of 4 years.
4. Rs. 5,00,000/ for a period of 6 years.
5. Rs. 5,00,000/ for a period of 8 years.
6. Rs. 5,00,000/ for a period of 10 years.
In the share of Petitioner no. 2 and 3 : (Son and Daughter of the deceased)
22. A sum of Rs. 2,00,000/ each alongwith the proportionate interest thereon, is awarded to the petitioner no.2 and 3 being son and daughter of the deceased.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
23. In terms of the directions given by Hon'ble High Court in case titled "Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
24. As per orders of Hon'ble High Court in case titled "New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008" as well as in another case titled as " Union of India V/s Nanisiri" bearing M.A.C. Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal Petition No. : 238/13, FIR No. : 211/11, PS : Safdarjung Enclave Page No. 14 of 17 Smt. Kusum & Ors. Vs. Ajay Kumar & Ors.
to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the petitioners.
25. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble High Court, Respondent no.3 is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioners.
within a period of 30 days from today, failing which respondent no.3 shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
26. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner:
(i) The interest on the fixed deposit be paid to the petitioners by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to petitioners after due verification and the Bank shall issue photo identity Card to the petitioners to facilitate their identity.
(iii) No cheque book be issued to petitioners without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in Petition No. : 238/13, FIR No. : 211/11, PS : Safdarjung Enclave Page No. 15 of 17 Smt. Kusum & Ors. Vs. Ajay Kumar & Ors.
safe custody. However, the original Pass Book shall be given to the petitioners alongwith the photocopy of the FDR's.
(v) The original fixed deposit receipts shall be handed over to petitioners at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii)Half yearly statement of account be filed by the Bank in this Court.
(viii)On the request of petitioners, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
(ix) Petitioners shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi. DIRECTIONS FOR THE RESPONDENT NO. 3
27. Respondent no.3 is directed to file the compliance report of its having deposited the awarded amount with State Bank of India, Saket Courts Branch in this Tribunal within a period of 30 days from today.
28. The Respondent no.3 shall intimate to the petitioners about its having deposited the cheques in their favour in terms of the award, at the address of the petitioners mentioned at the title of the award, so as to facilitate them to withdraw the same.
Petition No. : 238/13, FIR No. : 211/11, PS : Safdarjung Enclave Page No. 16 of 17 Smt. Kusum & Ors. Vs. Ajay Kumar & Ors.
29. Copy of this award / judgment be given to the petitioners and insurance company for compliance.
30. The case is now fixed for compliance by the respondent no.3 for 08.12.2014 Announced in the open court on 07th Day of November, 2014 (K S MOHI) Presiding Officer : MACT South Distt. : Saket Courts New Delhi : 07.11.2014 Petition No. : 238/13, FIR No. : 211/11, PS : Safdarjung Enclave Page No. 17 of 17