Delhi District Court
Smt. Shashi Devi vs Sh. Mukesh Kumar ( Driver) on 22 March, 2012
IN THE COURT OF SH. ARVIND KUMAR: PRESIDING OFFICER MOTOR
ACCIDENT CLAIM TRIBUNAL KARKARDOOMA COURTS : DELHI
M.A.C. Petition No: 1009/10
Unique Case ID No : 02402C0217912009
1. Smt. Shashi Devi
W/o Late Sh. Sudershan Bhandari
2. Master Aman( Minor)
Through mother
Smt. Shashi Devi
W/o Late Sh. Sudershan Bhandari
aged about ; ½ years
3. Smt. Sumitra Devi
W/o Late Sh. Gobind Singh
aged; 62 years
All resident of :
Village Surari
District- Paudi Garhwal
Uttrakhand. ... Petitioners
VERSUS
1. Sh. Mukesh Kumar ( Driver)
S/o Sh. Bir Singh
R/o J-24, East Vinod Nagar,
Delhi-110092.
2. Smt. Sushma Rani ( Owner)
R/o F-1, West Chander Nagar
Delhi-110051
3. The Oriental Insurance Company Ltd.
A-25/27, Asaf Ali Road,
New Delhi-110002 ... Respondents
Presented on : 29.07.2009
Reserved for judgment on : 21.03.2012
Judgment delivered on : 22.03.2012
M.A.C. Petition No: 967/10 & 1009/10 Page No. 1/15
M.A.C. Petition No: 967/10
Unique Case ID No : 02402C0208992009
1. Ms. Renu Gupta
W/o Sh. Kaushal Gupta
2. Sh. Kaushal Gupta
S/o Late Sh. Satya Narayan
Both R/o H. No. 654, Village
Dallupura,
Delhi-110096. ... Petitioners
VERSUS
1. Sh. Mukesh Kumar ( Driver)
S/o Sh.
R/o Village- Jald Garhi, Post-Tappal
P. S. Tappal, Tehsil - Kher,
district- Aligarh, UP
Also at:
C/o Smt. Sushma Rani
R/o H. No. D-6, Naveen Shahdara,
Delhi-32.
2. Smt. Sushma Rani ( Owner)
W/o Sh.
R/o H. No. D-6, Naveen Shahdra,
Delhi-32
3. The Oriental General Insurance Company Ltd.
At A-25/27, Oriental Bhawan, Asaf Ali Road,
Delhi- 2 ... Respondents
Presented on : 22.07.2009
Reserved for judgment on : 21.03.2012
Judgment delivered on : 22.03.2012
JUDG MENT
1. By a common judgment, I am disposing of these two petitions as the claims are arising from the same accident involving the same vehicle. In MAC M.A.C. Petition No: 967/10 & 1009/10 Page No. 2/15 Petition bearing No. 1009/10, the claimants put up a claim for Rs. 20,19,000/-( Rs. Twenty Lacs Nineteen Thousand) towards the death of Sh. Sudershan Bhandri @ Sudesh Sharma . In MAC Petition bearing No. 967/10, the claimant put up a claim for Rs. 15,00,000/- (Rs. Fifteen Lacs) towards the death of master Tejash Gupta.
2. The brief facts, as stated by petitioners in petition No. 967/10, are that on 22.06.2009 one Master Tejash Gupta was going on scooter along with his cousin brother Sh. Anand Gupta and was going towards Kondli, Delhi from Dallupura and when they reached near petrol pump, village Dallupura, Delhi, a R.T.V. bus bearing No. DL-V-A-2513, driven by respondent No. 1 rashly, negligently and at a high speed, hit the scooter. As a result of which Sh. Tejash Gupta fell down and sustained fatal injuries and was taken to LBS hospital where he was declared brought dead. In the petition bearing No. 967/10, the petitioners stated that petitioner was 17 years of age and was employed as a helper/servant with M/s. Jagdamba Traders, at X-3042, Raghubarpura chowk, Gandhi Nagar, Delhi and was earning Rs. 5000/- per month. It is stated that petitioner was having speciality in dancing and participated in many dancing programme on various channels.
3. In the petition No. 1009/10, the petitioners stated that in the said RTV bus Sh. Sudarshan Bhandari was also travelling and RTV dashed against the wall in order to avoid major accident with the two wheeler and due to the impact Sh. Sudarshan Bhandari died. The petitioner stated that deceased was 12th pass and was working with M/s. C.C.P. Thermo Alloys Pvt. Ltd. at W-46, sector-11, Noida, UP, as Assistant Operator for assembly of censor and was earning Rs. 4315/- per month and his promotion was due to the post of Operator and after three years as Production Supervisor and would have got salary of Rs. 9000/- per month. It is stated that deceased was married with petitioner No. 1, and petitioner No. 2 was her son and petitioner No. 3 was the mother of the deceased.
4. Written statement is filed by the respondent No. 1 denying the involvement of the vehicle in the accident. It is stated that on two scooters, two M.A.C. Petition No: 967/10 & 1009/10 Page No. 3/15 pillion riders were sitting and they were not wearing helmets and they were racing with each other and both the two wheelers were being driven in a rash and negligent manner and one scooter overtook the RTV and the RTV driver in order to save the two wheeler scooter applied the brakes and other scooter hit the RTV from the left side. It is stated that to save the life of passengers of RTV, driver turned the RTV on the left side and RTV struck the wall of petrol pump and the deceased Sh. Sudhershan Bhandari @ Sudesh Sharma who was standing at the gate of RTV fell down due to his own fault.
5. The respondent No. 2 filed written statement stating that there was no fault on the part of respondent No. 1 and there was no negligence on his part. It is stated that vehicle bearing No. DL-IV-A-2513( RTV) was insured and respondent No. 1 was holding a valid driving licence at the time of accident.
6. The respondent No. 3 / insurance company filed its written statement admitting that the vehicle bearing registration No. DL-1VA-2513(RTV) was insured vide policy No. 215400/31/2009/2583 valid for the period from 14.12.2008 to 13.12.2009. The insurance company stated that insurance company would not be liable in case of violation of terms and conditions of policy or in case of driver not having the valid driving licence.
7. Based on the pleadings of the parties, the following issues were framed in petition No. 967/10
1. Whether the deceased Master Tajesh Gupta, suffered fatal injuries in the accident occurred on 22.06.2009 due to rash and negligent driving of vehicle No. DL-IVA-2513 being driven by the respondent No. 1? ( OPP)
2. Whether the petitioners are entitled for any compensation, if so, to what amount and from whom?
3. Relief.
8. Following issues were framed in petition No. 1009/10:-
M.A.C. Petition No: 967/10 & 1009/10 Page No. 4/151. Whether the deceased Sh. Sudershan Bhandari @ Sudesh Sharma, suffered fatal injuries in the accident occurred on 22.06.2009 due to rash and negligent driving of vehicle (Bus) No. DL-I VA-2513 being driven by respondent No. 1?
(OPP)
2. Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? ( OPP)
3. Relief.
9. Both the cases were consolidated on 09.12.2010 for recording common evidence. The petitioner No. 1 Smt. Renu Gupta (in petition No. 1009/10) examined herself as PW-1, Smt. Shashi Devi as PW-2, Sh. Asim Rabbani as PW-3, Sh. Anand Gupta as PW-4. On the other hand respondent No. 2 examined Smt. Sushma Rani as R-2W-1.
10. I have heard counsels for the parties. My findings on issues are as under-:-
Issues No. 1 of petition No. 1009/10 & 967/10 Issues No. 1 of petition bearing Nos. 1009/10 & 967/10 are with regard to the negligence of the driver of vehicle bearing No. DL-IVA-2513 , therefore issues No. 1 of petition bearing No. 1009/10 & 967/10 are taken together.
11. The petitioner No. 1, Smt. Renu Gupta (petitioner in petition No. 1009/10) examined herself as PW-1 and exhibited the criminal case record as PW-1/1. PW-1 Smt. Renu Gupta during cross-examination stated that her son was not having driving licence and at the time of accident he was not driving the vehicle. PW-1 further stated that on the day of accident her son namely Tejas Gupta and her nephew Sunny left the house on a two wheeler scooter and one another boy whose name she did not know joined them on two wheeler scooter. PW-1 stated that Sunny was 17 years of age at the time of accident and was not holding any valid driving licence.
M.A.C. Petition No: 967/10 & 1009/10 Page No. 5/1512. The testimony of PW-4, Sh. Anand Gupta is relevant on this issue. Sh. Anand Gupta deposed that on 22.06.2009 one Sh. Tejas Gupta was going on scooter along with him and was going towards Kondli, Delhi from Dallupura and when they reached at Dallupura, near petrol pump, village Dallupura, Delhi, a RTV bus bearing No. DL-1VA-2513, driven by respondent No. 1 rashly, negligently and at a high speed, hit the scooter. As a result of which Sh. Tejas Gupta fell down and sustained fatal injuries and was taken to Lal Bahadur Shastri hospital where he was declared brought dead. PW-4 further stated that an FIR No. 204/09 under section 279/338/304-A IPC was registered against the respondent No. 1. During cross- examination PW-4 stated that on day of accident he was travelling by his bicycle and the accident had taken place in his presence. PW-4 stated that he was riding his bicycle and his cousin was on scooter and he did not know who was owner of the scooter and he did not know who was driving the scooter and Sh. Tejas was sitting on the carrier of his bicycle and they left the school and they met with a friend on the way who was driving the scooter. PW-4 further stated that his cousin was not wearing any helmet while he was sitting on the two wheeler of his friend. PW-4 also stated that he fell down and suffered injuries and as the RTV took sudden brakes, his front wheel of bicycle hit the RTV and front portion of his bicycle was damaged and his bicycle was also seized by the police. PW-4 also stated that he was also medically examined.
13. I have gone through the material on record. It is recorded in the FIR that Sh. Anand Gupta and Sh. Tejas were going towards New Kondli and when they reached near Indian Oil Petrol Pump, Dallupura, an RTV bearing No. DL-1VA-2513, being driven at a fast speed, rashly and negligently,hit the scooter from back side. and on the wall due to which they suffered injuries.
14. The FIR, site-plan, postmortem report, charge sheet and testimony of PW-2 taken together fully establish the death of Sudershan Bhandari @ Sudesh Sharma and Mater Tejas caused by the injuries sustained by them in the road accident involving RTV bearing registration No. DL-1VA-2513. There is nothing on record to dispel the inference that Sudershan Bhandari @ Sudesh Sharma and M.A.C. Petition No: 967/10 & 1009/10 Page No. 6/15 Master Tejas suffered fatal injuries sustained by them in a road accident which occurred on 22.06.2009 because of rash and negligent driving of vehicle bearing registration No. DL-IV-A-2513 being driven by the respondent No. 1. There is no material on record to show that there was any negligence on the part of deceased persons. The only inference that emerges from material on record is that respondent No. 1 was negligent and that resulted into the accident. There is no evidence in rebuttal. The issues No. 1 (in petitions bearing No. 1009/10 & 967/10) are decided accordingly.
Issue No. 2 in M.A.C. Petition No. 967/10
15. PW-1 Smt. Renu Gupta deposed that the deceased was 17 years of age and was employed as clerk/helper in M/s. Jagdamba Traders at X/3042, Ragupurpura Chowk, Gandhi Nagar, Delhi, and was earning Rs. 5000/- per month. It is stated that deceased was very good in extra curricular activities and he participated in various quiz and competitions and in various sports functions and his speciality was in dancing. PW-1 further deposed that the deceased participated in many dancing programme on T. V., on various channels. The petitioner No. 1 exhibited the birth certificate as PW-1/4, ration card as Ex. PW-1/5. During cross- examination petitioner stated that her son was 10 th class student and her son used to go to M/s. Jagdamba Traders for learning stitching as Jagdamba traders were known to them as family friends and he used to get salary in cash. The petitioner further stated that Sh. Tejas was employed for two months before the accident and she did not have any proof to show that her son was employed or earning any amount.
16. The petitioner, PW-1, deposed that her son was doing private service and was earning Rs. 5000/- per month but there is no material on record with regard to the income or employment of the deceased. The deceased was about 16 years of age at the time of accident. In the absence of any material on record, the minimum wages at the time of accident for a unskilled person as prevailing in NCT of Delhi, can be taken into consideration for calculating the compensation. The minimum wages, at the time of accident, for a unskilled M.A.C. Petition No: 967/10 & 1009/10 Page No. 7/15 workman were Rs. 3950/- (approx.) per month. No further amount can be added to the said amount towards inflation as held in the judgment "Dhaneshwari & Anr vs Tejeshwar Singh & ors." MAC App 997/2011, passed by Hon'ble High Court of Delhi.
17. In the present case as noted above, the monthly salary of the deceased at the time of death was considered as Rs. 3950/- and Rs. 47,400/- per annum (Rs. 3950 x 12). Interest of justice in the present case would be met if 1/2 i.e. Rs. 23,700/- is deducted as the personal and living expenses of the deceased (as the deceased was bachelor). After such deduction the contribution to the family (dependents) is determined as Rs. 23,700/- per annum. The multiplier applicable would be 15 (as the age of mother of deceased was about 36 years as per voter I- card). Therefore, the total loss on dependency would be Rs. 3,55,500/-( 23,700 x
15).
18. In addition, the claimants will be entitled to a sum of Rs. 25,000/- towards love and affection, Rs. 10,000/- towards loss of estate and Rs. 5,000/- towards funeral expenses. Thus, the total compensation will be Rs. 3,95,500/- ( 3,55,500 + 40,000).
Issue No. 2 in M.A.C. Petition No. : 1009/10
19. The petitioner, PW-2 Smt. Shashi Devi deposed that deceased was 12 th pass and was working with M/s. C.C.P. Thermo Device Pvt. Ltd. as assistant operator for assembling of censor for the previous two years and was earning Rs. 4315/-per month and as per the company rules, his promotions to the post of operator was due and after further three years, he would have been promoted to the post of supervisor and would be getting Rs. 9000/- per month. It is stated that petitioner No. 2 was the son and petitioner No. 3 was the widowed mother of the deceased. The petitioner No. 2, Smt. Shashi Devi exhibited the original appointment letter and salary certificate as PW-2/1. During cross-examination petitioner stated that her husband was getting his salary in cash and her husband M.A.C. Petition No: 967/10 & 1009/10 Page No. 8/15 was residing in Khoda Colony in a rented premises.
20. PW-3 Sh. Asim Rabbani, General Manager, C.P.P. Thermo Devices Pvt. Ltd. deposed that Sh. Sudharshan Bhandari(deceased) worked in their company since 01.05.2008 to 21.06.2009 and was drawing Rs. 5178/- per month as salary. PW-3 Sh. Asim Rabbani exhibited the appointment letter as Ex. PW-3/B, salary certificate as PW-3/C, letter dated 28.07.2009 regarding future prospect and promotions as PW-3/1. During cross-examination PW-3 stated that there was policy of the company for the employees of the company and he had not brought the policy of their company of promotions. The policy of promotions was depending on the working capacity of the employees and therefor there was no criteria for educational qualification for the workers who were related to production department and it was totally dependent upon the experience and productivity of worker. The PW-3 also exhibited the rules and regulations regarding annual increments, promotion and out of turn promotions as PW-3/X. It is stated that an increment was given on 01.04.2009 to Sudarshan Bhandari but he had not brought any document to show that such increment was given to the deceased employee.
21. I have gone through the material on record. From the testimony of PW-2 and PW-3 it is apparent that deceased was employed with M/s. C.C.P. Thermo Devices Pvt. Ltd. The certificate Ex. PW3/C shows that deceased was getting Rs. 5178/- per month as salary. The appointment letter Ex. PW-3/8 shows that the deceased joined the said company on 01.05.2008, at the salary of Rs. 3765/- per month. It is also recorded in the certificate dated Ex. PW-3/1 that next promotions was due as operator on 01.04.2010. The Ex. PW-3/X clearly shows about the annual increments and promotions. It can be easily inferred that deceased was the permanent employee of the firm and also got increment therefore following judgment of 'Sarla Verma Vs. DTC ', 50% of amount be added towards the future prospect.
22. In the present case as noted above, the monthly salary of the deceased at the time of death was Rs. 5178/-per month. Adding 50% of the salary i.e. Rs.
M.A.C. Petition No: 967/10 & 1009/10 Page No. 9/152589/- towards future prospect, the salary comes to Rs. 7767/-( 5178 + 2589). The annual income of the deceased would be Rs. 93,204/-(7767 x 12). Since there are three dependents i.e. wife, a child and widowed mother, 1/3 rd of the income is liable to be deducted towards personal and living expenses of the deceased. The net income of the deceased comes to Rs. 62,136/- ( 93204 - 31068). The postmortem report shows the age of deceased to be 28 years whereas in the petition the age of the petitioner is mentioned as 27 years. Hence the age of the petitioner is taken to be 28 years at the time of accident. The multiplier applicable would be 17 considering the age of the deceased at the time of accident. The total compensation on account of dependency comes to Rs. 10,56,312/- ( 62,136 x 17).
23. In addition, the claimants will be entitled to a sum of Rs. 25,000/- towards love and affection, Rs. 10,000/- towards loss of estate and Rs. 5,000/- towards funeral expenses. The petitioner No. 1 being the wife of the deceased is also entitled to a sum of Rs. 10,000/- on account of loss of consortium. Thus, the total compensation will be Rs. 11,06,312/- (rounded of to Rs. 11,06,350/-) LIABILITY
24. Since Insurance company has admitted the policy as on date of accident therefore respondent No. 3 is liable to pay the compensation amount.
25. There being no evidence of violation of the policy condition and there being no evidence to support the permitted defence U/s. 149(2) of the M.V. Act, I am unable to grant the recovery rights. Therefore, insurance company shall make good the compensation in terms of the accepted policy.
Issue No. 3 (Relief)
26. While granting the relief to petitioners in both the cases, I am also to award the interest @ 7.5% p.a on the amount awarded to petitioners from the date of filing of petitions till realization of the amount. Issue No. 3 is answered M.A.C. Petition No: 967/10 & 1009/10 Page No. 10/15 accordingly.
Relief in M.A.C. Petition No. 967/10
27. In view of the above, I am directing to the respondent No. 3/ insurance company to pay to the claimants in M.A.C. Petition No. 967/10, a sum of Rs. 3,95,500/-, inclusive of interim compensation. The respondent No. 3, the insurance company is hereby directed to pay a compensation of Rs. 3,95,500/- to claimants in M.A.C. Petition No. 967/10 within one month. The respondent No. 3 shall also pay interest @ 7.5% p.a. (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioners.
28. For the aforesaid reasons, I pass the following award :-
AWARD IN M.A.C. PETITION NO. 967/10 In view of the above the petition is allowed. The respondent No. 3 is liable to pay the compensation of Rs. 3,95,500/- inclusive of interim compensation. The insurance company is hereby directed to pay a compensation of Rs. 3,95,500/- within one month. The respondent No. 3 shall also pay interest @ 7.5% p.a. (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioners. The compensation amount shall be apportioned amongst the petitioners, along with corresponding interest in the following manner : -
(a)Petitioner No 1 : Rs. 3,55,950/- along with
corresponding interest.
(b)Petitioner No 2 : Rs. 39,550/- along with
corresponding interest.
29. The award amount along with interest be deposited by insurance company with UCO Bank, Nodal Officer through Nodal Officer, Karkardooma Branch, within 30 days in the petitioners' accounts.M.A.C. Petition No: 967/10 & 1009/10 Page No. 11/15
30. Upon the aforesaid amount being deposited, the UCO Bank is directed to keep the amount awarded to petitioners in fixed deposit in the following manner:-Petitioner No. 1
Fixed deposit of Rs. 75,000/- for a period of two year, four years and six years and rest of the amount shall be released to the petitioner No. 1. Petitioner No. 2 The amount awarded to petitioner no. 2 shall be released to petitioner no. 2.
31. The interest on the aforesaid FDR shall be paid monthly by automatic credit of interest in the savings account of petitioners.
32. Withdrawal from the aforesaid account shall be permitted to the petitioner after due verification and the bank shall issue photo identity card of petitioner to facilitate identity.
33. No cheque book be issued to the petitioners without the permission of the court.
34. The original fixed deposit receipts shall be retained by the bank in the safe custody. However, the original pass book shall be given to the appellant along with photocopy of the FDRs.
35. The original fixed deposit receipts shall be handed over to the petitioner on the expiry of the period of the FDRs.
36. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of the court.
37. Half yearly statement of account be filed by the bank in the court.M.A.C. Petition No: 967/10 & 1009/10 Page No. 12/15
38. On the request of the petitioner, the bank shall transfer the saving account to any other branch of UCO bank according to the convenience of the petitioners.
39. The petitioners shall furnish all the relevant documents for opening of the saving bank account and fixed deposit account to Nodal Officer, UCO Bank, Karkardooma Court, Delhi.
Relief in M.A.C. Petition No. 1009/10
40. The respondent No. 3/ insurance company is directed to pay to the claimants, a sum of Rs. 11,06,350/-. The respondent No. 3, the insurance company is hereby directed to pay a compensation of Rs. 11,06,350/- to claimants within one month. The respondent No. 3 shall also pay interest @ 7.5% p.a. on the total compensation amount from the date of petition till realization to the petitioner.
41. For the aforesaid reasons, I pass the following award :-
AWARD IN M.A.C. PETITION NO. 1009/10 In view of the above the petition is allowed. The respondent No. 3 is liable to pay the compensation of Rs. 11,06,350/-. The respondent No. 3, the insurance company is hereby directed to pay a compensation of Rs. 11,06,350/- within one month. The respondent No. 3 shall also pay interest @ 7.5% p.a. (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioner. The compensation amount shall be apportioned amongst the petitioners, along with corresponding interest in the following manner : -
(a)Petitioner No 1 : Rs. 4,97,857/- along with corresponding interest.
(b)Petitioner No 2 : Rs. 3,31,905/- along with corresponding interest.M.A.C. Petition No: 967/10 & 1009/10 Page No. 13/15
(c)Petitioner No 3 : Rs. 2,76,587/- along with
corresponding interest.
42. The award amount along with interest be deposited by insurance company with UCO Bank, Nodal Officer through Nodal Officer, Karkardooma Branch, within 30 days in the petitioners' accounts.
43. Upon the aforesaid amount being deposited, the UCO Bank is directed to keep the amount awarded to petitioners in fixed deposit in the following manner:-Petitioner No. 1
Fixed deposit of Rs. 1,00,000/- for a period of two year, four years, six years, eight years and rest of the amount shall be released to the petitioner No. 1.Petitioner No. 2
The amount awarded to the minor shall be kept in FDR till his attaining the age of majority.
Petitioner no. 3.
Fixed deposit of Rs. 75,000/- for a period of two year, four years and rest of the amount shall be released to the petitioner No. 3.
44. The interest on the aforesaid FDR shall be paid monthly by automatic credit of interest in the savings account of petitioners.
45. Withdrawal from the aforesaid account shall be permitted to the petitioner after due verification and the bank shall issue photo identity card of petitioner to facilitate identity.
46. No cheque book be issued to the petitioners without the permission of the court.
47. The original fixed deposit receipts shall be retained by the bank in the safe custody. However, the original pass book shall be given to the appellant along M.A.C. Petition No: 967/10 & 1009/10 Page No. 14/15 with photocopy of the FDRs.
48. The original fixed deposit receipts shall be handed over to the petitioner on the expiry of the period of the FDRs.
49. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of the court.
50. Half yearly statement of account be filed by the bank in the court.
51. On the request of the petitioner, the bank shall transfer the saving account to any other branch of UCO bank according to the convenience of the petitioners.
52. The petitioners shall furnish all the relevant documents for opening of the saving bank account and fixed deposit account to Nodal Officer, UCO Bank, Karkardooma Court, Delhi.
53. List for reporting compliance on 22.05.2012.
54. A copy of the order be given dasti to counsel for concerned parties.
55. Original judgment be kept in M.A.C. Petition No. 1009/10 and a copy in other file. A copy of the award be given free of cost to the parties concerned.
Announced in the (Arvind Kumar)
open court on 22.03.2012 Presiding Officer: MACT
Karkardooma Court
Delhi
M.A.C. Petition No: 967/10 & 1009/10 Page No. 15/15