Delhi District Court
Sh. Jai Parkash Sharma vs Sh. Firoz Khan (Driver) on 16 July, 2011
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IN THE COURT OF SH. S. S. MALHOTRA, ADDL. DISTRICT JUDGE/PO
MACT/EAST/KARKARDOOMA COURTS/DELHI;
MACT 324/10
Date of filing of petition : 28.03.2007
Date of transfer of petition to the court : 20.02.2010
Date of arguments : 01.06.2011
Date of award : 16.07.2011
IN THE MATTER OF:
1 Sh. Jai Parkash Sharma
S/o Late Sh. Mukhtayar Singh
2 Smt. Shakuntla Sharma
W/o Sh. Jai Parkash Sharma
3 Smt. Santosh Vats @ Santosh Kumari
W/o Late Sh. Rajesh Kumar Vats
4 Baby Khushi
D/o Late Sh. Rajesh Kumar Vats
(Through her mother i.e. petitioner no. 3)
All R/o: H.No. 1/10206, Street No. 1,
West Gorakh Park, Shahdara,
Delhi110032
Versus
1 Sh. Firoz Khan (driver)
S/o Sh. Suleman
R/o Chamar Darwaza,
Meerut, Uttar Pradesh
Also through respondent no. 2
i.e. the owner JAI PRAKASH SHARMA VS. FIROZ KHAN & ORS.
2/132 Mohd. Yasuf (owner) S/o Sh. Mohd. Wahid R/o Sikandrabad, Bulland Shahar, Uttar Pradesh 3 The New India Assurance Company Ltd. (Insurer) Divisional Office 321600 38, Navyug Market, Ghaziabad, Uttar Pradesh ....Respondents AWARD UNDER SECTION 166 &140 OF THE MOTAR VEHICLE ACT 1 Vide this award, I shall dispose of the petition of the petitioners i.e. petitioners no. 1 and 2, the parents of Sh. Rajesh Kumar Vats (hereinafter referred to be as 'the deceased'), the petitioner no. 3, the wife of the deceased and the petitioner no. 4, the minor daughter of the deceased as filed by the them jointly under section 166 &140 of Motor Vehicle Act against all the three respondents i.e. the respondent no. 1, the driver of the Truck make Tata 609 bearing registration no. UHP703 (hereinafter referred to be as 'the offending vehicle'), and the respondent no. 2, the owner of the said offending vehicle and the respondent no. 3, the insurance company of the said offending vehicle, thereby, claiming a compensation to the extent of Rs. 40 lacs (as per amended petition) along with interest @ 18% per annum from the date of filing of the petition till realization from all the three respondents jointly and severally on account of the death of the deceased due to the rash and negligent driving of the respondent no. 1 on 18.09.2006.
2 Brief facts as stated by the petitioners in the petition are, that 18.09.2006 at about 4:30 p.m., the deceased was driving his motorcycle bearing registration no. DL5ST8061 and when he reached near Gole Chakkar, Amrit Puram the offending vehicle came from Kasana side which was being driven by the respondent no. 1 in a JAI PRAKASH SHARMA VS. FIROZ KHAN & ORS.
3/13rash and negligent manner and hit against the motorcycle of the deceased due to which the deceased fell down on the road and he received fatal injuries and the motorcycle of the deceased was also got damaged. It is further stated that the deceased was removed to Kailash Hospital and was declared as brought dead. The postmortem of the deceased was conducted on 19.06.2006 and the report has been filed on record bearing report no. 529/06 and it is further stated that an FIR No. 217/06 was got registered against the respondent no. 1 at Police Station Kasana, under section 279/304A/427 IPC and under section 112/184 of M.V. act. It is further stated that the deceased at the time of accident/death was 35 years of age and he was self employed as Business Man and was the Sole proprietor of Nidhi Enterprises at 1/10206, Street No. 1, West Gorakh Park, Shahdara, Delhi and he was earning Rs. 20,000/ per month (as per amended petition and an amount of Rs. 12,500/ per month was written in the original petition). It is further stated that the deceased was an income tax assessee and was a aspirant business man and he was an ambitious person and he had applied for an industrial plot at Greater Noida with Greater Noida Industrial Development Authority for his new project namely M/s Vidhi Laser Point and further wanted to install a plant to manufacture and assemble computers, computer designing, laser type setting and software development etc and the said plot was alloted to the deceased vide allotment letter dated 23.06.2001 for a sum of Rs. 3,00,000/ and even he had deposited a sum of Rs. 2,65,577/ till 21.08.2006 and as such he was supposed to earn much larger amount if the project would have been started which could not be started only because of the untimely death of the deceased and therefore, a compensation of Rs. 40 lacs along with interest @ 18% per annum from the date filing of the petition till its realization is being sought by the JAI PRAKASH SHARMA VS. FIROZ KHAN & ORS.
4/13petitioners from all the three respondents stating therein that all the respondents are jointly and severally liable for paying the compensation to the petitioners. 3 Respondents no. 1 and 2 have filed joint written statement taking preliminary objections that the petitioners have filed the present petition only to achieve illegal gain by harassing and impleading the respondents no. 1 and 2 in this case to secure the MACT claim and it is stated that the petition of the petitioners is liable to be dismissed as the same has been filed with malafide intentions against the answering respondents. It is further stated that no accident was caused from the respondent no. 2 on the alleged date, time and place and the petitioners falsely involved the vehicle of the respondent no. 1. It is stated that the deceased himself was driving his motorcycle in rash and negligent manner and in any case the vehicle of the respondent no. 1 was duly insured with the respondent no. 3 and therefore, the liability, if any, is of the respondent no. 3. On merits, the facts with respect to the age, income or earning capacity of the deceased are denied for want of knowledge. The fact of registration of the FIR is not denied. However, it is denied that the same is false and frivolous. The offending vehicle has been got falsely involved in the accident instead of actual vehicle which was involved in the accident. The facts with respect to the longevity of the deceased, or loss suffered by the petitioners are denied for want of knowledge. The claim sought by the petitioners is stated to be highly excessive, exaggerated, exorbitant and it is without any basis and it is prayed that the petition of the petitioners is liable to be dismissed and may kindly be dismissed against them.
4 Respondent no. 3 has filed separate written statement taking preliminary objections that the accident was occurred due to the rash and negligent driving of the JAI PRAKASH SHARMA VS. FIROZ KHAN & ORS.
5/13deceased himself who might be driving the vehicle in violation of the provision of traffic rules and regulations. The petition is bad for non joinder of necessary parties. There is no privity of contract between the petitioners and the answering respondent. There was no negligence on the part of respondent no. 1 and the sole negligence was on the part of the deceased himself and in any case if the negligence has been proved contributory then in these circumstances, the liability of the answering respondent would be reduced subsequently. No information was given to the insurance company with respect to accident. It is further stated that answering respondent would not be liable to pay any compensation to the petitioners, if the driver of the offending vehicle is found to be driving the vehicle without holding valid driving licence or was unable to hold a valid and effective driving licence. Even otherwise the claim sought by the petitioners is stated to be highly excessive, exaggerated, and it is without any basis. He has taken all the defences under section 170 & 149 of M.V. Act and has reserved its right to amend his written statement, if new facts are brought to its notice. On merits, the facts with respect to the age, income or earning capacity of the deceased are denied for want of knowledge. The fact that the offending vehicle was duly insured with the answering respondent is not denied. The fact that accident has taken place due to the rash and negligent driving of respondent no. 1 is specifically denied. However, the fact that the offending vehicle of the respondent no. 1 was duly insured with respondent no. 2 is not denied and it is prayed that the petition of the petitioner be dismissed after dealing with the objections as raised by the respondents. 5 After completion of the pleadings, following issues were framed on 03.01.2008: i Whether Sh. Rajesh Kumar Vats sustained injuries due to rash and negligent driving of TATA 609 No. UHP703 by respondent no. 1?
JAI PRAKASH SHARMA VS. FIROZ KHAN & ORS.
6/13ii Whether above mentioned vehicle was not involved in the alleged accident and if so to what effect?
iii Whether the petitioners are entitled to get compensation, if so, to what amount and from whom?
iv Relief. 6 After framing up of issues the parties were directed to lead evidence to prove
their respective contentions/pleas. Accordingly, petitioner no. 3 (i.e. the wife of the deceased) has examined herself as PW1, Sh. Anil Kumar Verma, Inspector, Income Tax Office, Ward34 (2), New Delhi, who has proved the ITR of the deceased as PW2 and Sh. Basi Khan, Manager Industry, Greater Noida Ind. Development Authority as PW3 and Sh. Mohd. Jahangir, who is stated to be an eyewitness, as PW4 and thereafter, petitioners have closed their evidence. The opportunity thereafter was given to the respondents to lead their evidence, but ld. counsel for the respondent no. 3 has submitted that the driving license and the permit have been verified and he has closed its evidence and the matter was fixed for final arguments. 7 I have heard the arguments and perused the record. My issuewise findings as follows: ISSUE NO. 1: 8 The onus of this issue was was upon the petitioners and they had to prove that Sh. Rajesh Kumar Vats sustained injuries due to rash and negligent driving of TATA 609 No. UHP703 by respondent no. 1. 9 To prove this issue, the petitioners have examined PW2 Sh. Mohd. Jahangir, who JAI PRAKASH SHARMA VS. FIROZ KHAN & ORS.
7/13is stated to be an eye witness. He has deposed in terms of his affidavit that on 9.08.2005 at about 4.30 p.m. he was going along with his friend Sh. Rajesh Kumar Vats on the motorcycle bearing registration no. DL5ST8061 as pillion rider. The said motorcycle was being driven by the deceased and when they reached near Gole Chakkar, Amrit Puram the offending vehicle came from Kasana side which was being driven by the respondent no. 1 in a rash and negligent manner and hit against the motorcycle of the deceased due to which the deceased fell down on the road and suffered fatal injuries. 10 In cross examination, he deposed that his statement was recorded by the police at concerned police station. He denied the suggestion that he is not the eye witness of the accident. He also denied that accident has taken place due to the negligence of the deceased himself. He further denied the suggestion that he has deposed falsely about the occurrence and manner of occurrence of the accident.
11 Petitioner no. 3 i.e. the wife of the deceased, has also deposed in terms of the petition and filed her affidavit Ex. PW1/X. She has also filed the certified copy of the death certificate of the deceased, certified copy of the postmortem report of the deceased, certified copy of the FIR, copy of the driving license of the respondent no. 1, copy of the registered certificate of the offending vehicle, copy of the insurance cover note, copies of the ITRs (last three years) and copies of the identity card of the petitioners.
12 I have perused the charge sheet which has been filed against the respondent no. 1 by the concerned police. The certified copy of postmortem report has also been filed on record. Therefore, the postmortem report confirms the death of the deceased on the same day and filing of the Charge Sheet against the respondent no. 1 proves that the JAI PRAKASH SHARMA VS. FIROZ KHAN & ORS.
8/13deceased died because of the rash and negligent driving of the respondent no. 1. This issue is decided accordingly in favour of the petitioners. ISSUE NO. 2:
13 The onus of this issue was upon the respondents no. 1 and 2 and they had to prove that the offending vehicle was not involved in the alleged accident and if so to what effect.
14 They have taken this plea in their written statement that the offending vehicle was not involved in the alleged accident but they never came forward to prove this fact. Therefore, in absence of any evidence, it is held that respondent no. 1 and 2 has failed to prove this issue. This issue is decided accordingly against the respondent no. 2. ISSUE NO. 3:
15 The onus of this issue was upon the petitioners and they had to prove that they are entitled to get compensation, if so, to what amount and from whom. 16 Before entitling the compensation, the petitioners have to prove that they are the legal heirs of the deceased.
17 To prove the fact that the petitioners are the legal heirs of the deceased, the petitioners have filed the photocopy of their identity cards as well as of the deceased. I have perused the same and the identity card of the deceased bears the name of his father i.e. petitioner no. 1 and the identity card of the petitioner no. 2 bears the name of the petitioner no. 1 as her husband i.e. father of the deceased and the identity card of the petitioner no. 3 i.e. wife of the deceased, bears the name of the deceased as her husband. There is not much cross examination on this aspect by the respondent no. 3. Accordingly, it is held that petitioners are the legal heirs of the deceased.
JAI PRAKASH SHARMA VS. FIROZ KHAN & ORS.
9/1318 Now coming to the next part of the issue i.e. whether the petitioners are entitled for any compensation, if so, to what amount and from whom.
19 Since the court has already held hereinabove that the deceased died due to the rash and negligent driving of the respondent no. 1 and now it has been held that the petitioners are the legal heirs of the deceased, consequently, they are entitled for compensation.
20 How much compensation the petitioners are entitled to, depends upon various aspects in terms of Sarla Verma's judgment i.e. the income of the deceased, his age as well as his contribution towards family.
21 For the purpose of calculating the dependency allowance of the deceased, the court has to assess the multiplier as well as the income of the deceased. 22 Now coming to the multiplier aspect. The age of the deceased in the petition is stated to be 35 years at the time of death/accident. As per ITR, the date of birth of the deceased is written as 25.07.1972. The accident had happened on 18.09.2006. Therefore, the age of the deceased on the date of accident would be more than 34 years and the relevant multiplier, therefore, would be 16.
23 Now coming to the next aspect i.e. salary/income of the deceased. It is stated by the petitioners in the petition that the deceased was self employed as Business Man and was earning Rs. 20,000/ per month. To prove the income of the deceased, the petitioners have examined PW2 Sh. Anil Kumar Verma, Inspector, Income Tax Office, Ward34 (2), New Delhi, who has proved the ITR of the deceased as PW2. He has filed the ITRs of the deceased for the assessment year 200405, 200506 and 200607. 24 I have perused all these ITRs and all such ITR/evidence can be taken on record JAI PRAKASH SHARMA VS. FIROZ KHAN & ORS.
10/13which are prepared prior to the date of accident as the same are more authentic. As per the ITR for the assessment year 200405, the annual income of the deceased is shown as Rs. 59931.93/ and as per the ITR for the assessment year 200506, the annual income of the deceased is shown as Rs. 86,742.28/ and as per the ITR for the assessment year 200607, the annual income of the deceased is shown as Rs. 1,52,210/. These ITRs were filed before the Income Tax Office on 11.10.2004, 28.09.2005 and February 2007 (date is not legible) respectively. However, it is observed by the court that the ITR for the assessment year 200607 has been filed after the date of accident which had happened on 18.09.2006. Therefore, this ITR can not be taken as the basis of income of the deceased at the time of his death. Accordingly, the income of the deceased is taken to Rs. 86,742.28/ per annum as per the ITR shown for the assessment year 200506 for the purpose of calculating the dependency allowance. Further, to calculate the dependency allowance, the court has to decide as to how many number of dependents upon the deceased were there. It has already been proved that the deceased had wife, one minor daughter and parents. Since the father would not be counted for the purpose of computation the expenses which the deceased would have been incurring upon himself, therefore, the number of dependents upon the deceased would remain 3 and as such he would have been incurring 1/3th of his income upon himself which comes to Rs. 28,914.09/ per annum (Rs. 86,742.28 X 1/3th) and therefore, annually dependency allowance would remain as Rs. 57,828.19/ (Rs. 86,742.28 - Rs. 28,914.09) towards his family members and since the multiplier is 16, the total dependency allowance of the deceased would be Rs. 9,25,250.99/ (Rs. 57,828.19 X 16) to be round of Rs. 9,25,251/. Since the deceased was filing his ITR JAI PRAKASH SHARMA VS. FIROZ KHAN & ORS.
11/13and this amount also comes within the category of taxable income, the amount is subject to deduction of TDS. Since it has not been proved as to what kind of business the deceased was doing the deceased he is not entitled for any future benefits. 25 Apart from the dependency allowance, the petitioners are also entitled for non pecuniary damages, which are as follows:
i loss of love and affection : Rs. 10,000/ ii loss of consortium : Rs. 10,000/ iii loss of estate : Rs. 10,000/ iv towards funeral charges : Rs. 10,000/ 26 Accordingly, the petitioners are entitled to an amount of compensation to the
extent of Rs. 9,65,251/ (Rs. 9,25,251/ + Rs. 10000/ +Rs. 10000/ + Rs. 10000/ + Rs. 10000/).
LIABILITY:
27 Now coming to the next aspect as to who is liable to pay the compensation to the petitioners. It is not disputed that vehicle of respondent no. 2 was duly insured with respondent no. 3 and even this fact otherwise has been admitted by respondent no. 3.
Although the liability of all the respondents is joint and several yet the liability of the respondent no. 3 is held to be primary.
RELIEF:
28 The respondent no. 3 is accordingly directed to pay the compensation of Rs. Rs.
9,65,251/ along with interest @ 8% per annum from the date of filing of the petition till the date of depositing the cheque in the bank, except for the period which is specifically excluded by the court and subject to adjustment of the amount paid towards JAI PRAKASH SHARMA VS. FIROZ KHAN & ORS.
12/13interim award and interest, if any and subject to TDS. The respondent no. 3 is further directed to deposit the amount of compensation by way of cheque after calculation within a period of one month from the date of award and one month would start when the petitioners would open their bank account.
29 Now coming to the apportionment part. Petition has been filed by the petitioners i.e. petitioners no. 1 and 2 being parents of the deceased, the petitioner no. 3 being wife of the deceased and the petitioner no. 4 being minor daughter of the deceased. Accordingly, the petitioners no.1 and 2 will get Rs. 50,000/ each along with interest @ 8% p.a. from the date of filing the petition till realization and the petitioner no. 3 will get Rs. 4,82,626/ along with interest @ 8% p.a. from the date of filing the petition till realization and petitioner no. 4 will get Rs. 3,82,625/ along with interest @ 8% p.a. from the date of filing the petition till realization.
30 Petitioner no. 1 and 2, the petitioner no. 3 and petitioner no. 4 being minor, through petitioner no. 3 being natural mother are directed to open respective saving bank account in their own names either in UCO Bank or at SBI or UBI whichever is nearest to their residence and 50% of the amount of compensation of petitioner no.1 and 2 and of the petitioner no. 3 shall be deposited by them as an FDR for a period of 2 years and 5 years respectively and 50% shall be credited in their saving bank account. 31 As far as the amount of compensation of minor petitioner no.4 is concerned, the entire amount of compensation of the minor petitioner no. 4 would be kept in FDR for a period upto attaining the majority by the petitioner no. 4 and the interest on the same would be transfered in the saving bank account regularly and every year. The bank concerned is directed that interest on FDR shall be paid monthly to the petitioners.
JAI PRAKASH SHARMA VS. FIROZ KHAN & ORS.
13/1332 In view of the judgment of own High Court, the following directions are also issued to Bank.
1 Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original passbook shall be given to the claimant along with the photocopy of the FDR.
2 The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period.
3 Photo Identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the Identity Card of the claimant. 4 No cheque book shall be issued to the claimant without permission of the court. 5 No loan advance or withdrawal shall be allowed on the fixed deposit without permission of the court.
6 The claimant can operate the saving bank account from the nearest branch of UCO bank or SBI or UBI and on the request of the claimant, the bank shall provide the said facility.
33 A copy of the order be given dasti to Insurance Company, & another copy be sent to Bank Manager Concerned where the account would be opened & one copy be given to petitioner free of cost.
34 File be consigned to Record Room.
ANNOUNCED IN OPEN (S.S.MALHOTRA)
COURT ON 16th JULY 2011 ADDL. DISTRICT JUDGE/
POMACT/KKD/COURTS/DELHI
JAI PRAKASH SHARMA VS. FIROZ KHAN & ORS.