Delhi District Court
Sangeeta K.Mithal vs . Rahul Malik Etc., on 17 November, 2011
1
IN THE COURT OF SH.H.S SHARMA, DISTRICT JUDGE &
ADDL.SESSIONSJUDGE/ PRESIDING OFFICER, MOTOR
ACCIDENT CLAIM TRIBUNAL, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
Sangeeta k.Mithal Vs. Rahul Malik etc.,
MACT No. 18/02/11
Case Type: Fatal
1 Mrs. Sangeeta K.Mithal,
W/o Late Mr. Kalp Mithal,
R/o B97, Sector 39,
Noida 201301 (U.P) ......Petitioner No. 1
2 Miss Ananya K.Mithal,
D/o Late Mr. Kalp Mithal,
(aged about 8 years)
R/o B97, Sector 39,
Noida201301 (U.P).
(through her mother and natural
guardians Mrs. Sangeeta K.Mithal)
......Petitioner No. 2
3 Mrs. Geeta Mithal
W/o Mr. Rajendra Mithal,
R/o B97, Sector 39,
Nodia - 201301 (U.P) ..... Petitioner No. 3
4. Mr. Rajendra Mithal,
Po MACT
Sangeeta K.Mithal Vs. Rahul Malik Page no.1 of 21
2
R/o B97, Sector 39,
Noida201301 (U.P) ......... Petitioner No.4
Versus
1 Mr. Rahul Malik,
S/o Mr. Har Gopal Malik,
R/o C96, Iind Floor,
G.K.1, New Delhi - 110048
(Driver of Honda City Car No.
HR51H3878) ..... Respondent No. 1(R1)
2 National Insurance Co. Ltd,
Direct Agent Branch 1,
th
12 Floor, Dr. Gopal Dass Dhawan,
28, Barakhamba Road,
New delhi - 110001
( Policy No. 360101/2000/612265 (New) Valid from 8.3.2001 to 7.3.2002) Respondent No.2 (R2) 3 C.M.Prints P.Ltd., 14/5, Mathura Road, Faridabad, (Haryana).
(owner of Honda City Car No. HR51H3878) .....Respondent No. 3(R3) Date of institution of the case : 25/02/2002 Po MACT Sangeeta K.Mithal Vs. Rahul Malik Page no.2 of 21 3 Date of framing of issues : 02/01/2004 Date of hearing arguments : 08.11.2011 Date of announcement of judgment : 17.11.2011 Present: Mrs. Suman Bagga, Advocate for the petitioners.
Sh.Bharat Ahuja adv. for R1 and R3 Sh.Pradeep Gaur, Advocate for R2.
AWARD/JUDGEMENT:
1 On 22/12/2001 Shri Kalp Mithal (hereinafter the deceased) was going in car bearing no. HR51H3878 (herein after the offending vehicle) driven by his friend Sh Rahul Malik respondent No.1 (hereinafter R1). They were going to Faridabad. The whether was foggy. The offending vehicle was being driven in a rash and negligent manner by R1.
When at about 1.30 a.m (night) this vehicle had reached NHPC Chowk, Mathura Road, Faridabad R1 could not see the vehicle coming from the left side. The offending vehicle was hit by a Tata- 407 which had come from the left side. As a result of the impact the deceased suffered multiple injuries. He was removed to Appolo Hospital. However he was Po MACT Sangeeta K.Mithal Vs. Rahul Malik Page no.3 of 21 4 declared brought dead.
2 The offending vehicle was owned by respondent No.3 (in short R3) and insured with respondent No.2 ( in short R2).
3 The present petition for claiming compensation of Rs. 80 lakhs has been filed by widow (petitioner no. 1) , minor daughter (petitioner no.2) and parents (petitioners no. 3 and 4) of the deceased.
4 R1 and R3 have put forth the defence that R1 was not negligent. The offending vehicle was being driven at a speed of 4045 km per/hour. A Tata - 407 had come from the left side. It was being driven at a fast speed without its head lights on. The driver of Tata - 407 was negligent. It had hit the offending vehicle. As a result of the impact the offending vehicle was badly damaged. This fact is clear from the condition of the car as well as the injuries sustained by the occupants of the offending vehicle. 5 R2 has admitted that the offending vehicle was insured with it in the name of R3.
Po MACT Sangeeta K.Mithal Vs. Rahul Malik Page no.4 of 21 5 6 Since R2 has not produced any evidence, therefore, I am not mentioning the other defence of R2 except that the amount claimed is exorbitant.
7. On the basis of pleadings of the parties issues were framed on 2/1/2004.
8. An interim award of Rs. 50,000/ was passed in favour of the petitioners on 25/3/2004.
9. I have heard ld. Counsel for the parties and have perused the file.
10. My issue wise findings are as under: ISSUE No. 1 : "Whether deceased suffered injuries in an accident which took place on 23/12/2001 due to rash and negligent driving of vehicle bearing no. HR 51 H 3878 driven by respondent no. 1, owned by R3 and insured with R2? OPP".
11. The petitioners have relied upon the statement of SI Raghubir Singh (PW3), who had investigated the matter. Po MACT Sangeeta K.Mithal Vs. Rahul Malik Page no.5 of 21 6 They have also relied upon the cross examination of Sh Dharam Singh, R1W1 and Sh Rahul Malik, (R1) R1W2.
12. Ld. Counsel for the respondents have submitted that the petitioners have failed to show that the accident had taken place due to negligent driving of R1 (R1W2).
13. It is well settled that in an accident claim petition, the standard of proof to establish the fact that the accident had taken place due to negligent driving of the driver of the offending vehicle, is not as rigid and as strict as is in a criminal case. Reliance in this regard can be placed on N.K.V. Brothers, (P.) Ltd., Vs. M.Karumai 1980 ACJ 435 (Supreme Court) wherein the Hon'ble Supreme Court has observed as under: "The requirement of culpable rashness of 304A IPC is more drastic than negligence sufficient under law of torts to create liability. Merely because accused was acquitted in criminal case is no ground to reject claim petition. The tribunals must take special care to see that the innocent victims do not suffer and drivers and owners do not Po MACT Sangeeta K.Mithal Vs. Rahul Malik Page no.6 of 21 7 escape liability, merely because of some doubts here and some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to the niceties, technicalities and mystic 'may be' presumption be drawn from doctrine of res ipsa loquitor." 14 In a given case, if the circumstances show that the principles of RES IPSA LOQUITOR can be made applicable, then in that case, even in the absence of an eye witness, inference, on the basis of principles of RES IPSA LOQUITOR can be drawn.
15 The principle of res ipsa loquitor belongs to the law of torts where negligence is in issue. The event of accident must be of a kind which does not happen in the ordinary course of things, if those who have the management and control use due care. Further, the event which caused the accident must be within the defendant's control. The reason for the second requirement is that where the defendant has control of the thing which caused Po MACT Sangeeta K.Mithal Vs. Rahul Malik Page no.7 of 21 8 the accident (injury) he is in a better position than the plaintiff to explain as to how the accident occurred.
16. In the present case, in para 23 of the petition, it has been averred by the petitioners that the offending vehicle was being driven in a rash and negligent manner by R1. R1 and R3 in their common WS have denied this fact. They have taken the defence that the deceased had come to the house of R1. Sh Dharam Singh Chauhan was also there. All of them had left for Faridabad in the offending vehicle. It was asserted that R1 was driving the offending vehicle at a normal speed of 4045 KMPH in full senses and with due diligence. A TATA407 came from the left side at a very fast speed. The head lights were not on. It was being driven in a negligent manner. It had hit the offending vehicle. The offending vehicle had been damaged and the occupants of the car had sustained injuries. Thus, in a way, R1 and R3 have not denied the fact that the deceased was in the offending vehicle at the time of accident and the deceased had suffered the injuries in this accident. However, they have Po MACT Sangeeta K.Mithal Vs. Rahul Malik Page no.8 of 21 9 blamed the driver of the alleged TATA407.
17. R1W1 and R1W2 have denied the suggestion that R1 (R1W2) was drunk at the time of accident. The deceased had been removed to the hospital by R1. This is evident from the MLC Ex. PW3/B. In this particular MLC the doctor had mentioned that the deceased as well as his friend were smelling alcohol. The deceased had been brought dead.
18. Now the facts which are incorporated in the MLC Ex. PW3/B are the one which had been stated to the doctor by R1 (R1W2). Thus, it can be said that R1 had had a talk with the doctor while narrating the facts as to how the accident had taken place. In the process the doctor must have smelt alcohol and had accordingly recorded the same in the MLC Ex. PW3/B. Therefore, R1 has not come to the court with clean hands. He apprehended that his admission of his being drunk at the time of accident would go against him and he would be prosecuted for his having caused this accident. R1 did not produce Po MACT Sangeeta K.Mithal Vs. Rahul Malik Page no.9 of 21 10 the mechanical inspection report of his car to substantiate the fact that his car had been hit by any vehicle from the left side. The FIR bearing No. 481/01 was registered in PS Sarai Khwaja, Faridabad. An untraced report Ex. PW3/C was filed by SI Raghubir Singh (PW3). It was for R1 to produce the entire documentary evidence--be it his MLC or mechanical inspection report of the offending vehicle to show that he was not negligent.
19. The site plan Ex. PW3/A shows that the accident had taken place at the inter section. R1 claims that he was driving the vehicle at a speed of 35/40 KMPH. The accident had taken place at about 1.30 AM (night) on 23.12.2001. Therefore, the fact that R1 was driving the vehicle at the speed of 4045 KMPH while proceedings towards an inter section, shows that he was negligent. As mentioned earlier, he was also drunk at that time. He would not have admitted his fault for obvious reasons. It is a fit case in which principle of RES IPSA LOQUITOR can be made applicable.
20. This issue is, therefore, decided in favour of the Po MACT Sangeeta K.Mithal Vs. Rahul Malik Page no.10 of 21 11 petitioners and against the respondents.
ISSUE NO.3 "Whether petitioner is entitled to compensation? If so, to what amount and against which of the respondents? OPP".
21 Petitioner No.1 is the widow. Petitioner No.2 is the daughter and Petitioners No.3 and 4 are the parents of the deceased. Being heirs of the deceased they are entitled to claim compensation.
22 So far as the amount of compensation payable to the petitioners is concerned, it is the case of the petitioners that the deceased was aged 34 years and was working as Executive Chef with 'The Park' Hotel, Parliament Street, New Delhi and was getting Rs.45,205/ p.m on the date of accident.
23 The postmortem report Ex.P4 shows that the age of the deceased was 34 years. The copy of the passport Ex.PW1/RA shows the date of birth of the deceased as Po MACT Sangeeta K.Mithal Vs. Rahul Malik Page no.11 of 21 12 28.2.67. The accident had taken place on 22.12.2001. Thus, the deceased was aged around 34 years. 24 Now so far as the income of the deceased is concerned, the petitioners have examined Sh.C.D. Neogi (PW2). Statement of this witness was recorded on 19.7.2005, 12.1.2006 and 11.8.2006. In the cross examination conducted on behalf of R2 on 19.7.2005 it was stated by him that Ex.PW2/A is the certified copy of form 16 of the deceased which had been certified by the Chartered Accountant of the hotel as well as by him (witness). In the cross examination dated 11.8.2006 he has stated that Ex.PW2/A was prepared after 26.12.2001 and the deceased had died on 22.12.2001. He denied the suggestion that Ex.PW2/A is not a genuine document. The witness had produced the computer generated print Ex.PW2/B which contains the details of the salary paid to the employees.
25 Except bald suggestions that the documents are forged, no material has been bought on record to justify rejection of statement of PW2 or to hold that Ex.PW2/A and Po MACT Sangeeta K.Mithal Vs. Rahul Malik Page no.12 of 21 13 Ex.PW2/B are forged documents. PW2 has been cross examined at length. He has given satisfactory answers to the questions put to him in the cross examination. He has given satisfactory answers to the questions put to him in the cross examination. Ex.PW2/D is dated 7.7.1998 and shows the basic salary of the deceased as Rs.9375/. In this document other allowances were mentioned as Rs.6,000/ p.m. 26 Under the head medical reimbursement no fixed amount is mentioned. Similarly the petrol reimbursement, LTR and PF are not fixed. Therefore, the amount under these heads are not being taken as the salary of the deceased. 27 Ex.PW2/D shows that Rs.4000/ used to be paid as uniform maintenance;Rs.2,500/ used to be paid towards conveyance expenses. The medical reimbursement used to be subject to maximum of 1½ month's basic salary p.a. Leave travel reimbursement used to be subject to a maximum of 1½ months' basic salary per annum. The P.F used to be as applicable under the provisions of Employees Provident Fund and Miscellaneous Provisions Act 1952.
Po MACT Sangeeta K.Mithal Vs. Rahul Malik Page no.13 of 21 14 28 Ex.PW2/B shows that the gross salary of the deceased was Rs.45,205/. The deceased was getting Rs. 18050/ as basic pay; Rs.9025/ as HRA; Rs.4000/ as UNIF MNTC; Rs.4000/ as Conveyance reimbursement ; Rs.2256/ as medical reimbursement ; Rs.2000/ as petrol reimbursement ; Rs.1000/ as telephone reimbursement ; Rs. 2708/ as LTR; Rs.2166/ as PF. The amount of medical reimbursement was not a fixed amount. As the amount of Rs. 2256/ would show that this amount had been claimed on account of its having been spent. Similarly the petrol reimbursement and LTR were dependent on personal expenses. The amount of PF cannot be included in the salary. Ex.PW2/A which is the attested copy of form16 shows the income of the deceased till 22.12.2001. The deceased was a regular employee. It is not that the income tax had been paid by the deceased only once and that too after his death. Learned counsel for the petitioners had placed 8,11,2011 on record a copy of form2D to show that the deceased had earlier also filed the income tax return Po MACT Sangeeta K.Mithal Vs. Rahul Malik Page no.14 of 21 15 under the scheme 'Saral'. He had filed the return for the year 20002001.
29 From the income, the income tax payable by the deceased is to be deducted before calculating the loss of dependency in view of the observations made by the Hon'ble Supreme Court in Sarla Verma Vs. DTC and another (2009) 6 SCC 121.
30 If the income tax at the rate of 30% is deducted from the income calculated as Rs.36,075/ (Rs.18050/ (basic pay) + Rs. 9025/ (HRA) + Rs.4000/ ( Uniform maintenance)+ Rs.4000/ (conveyance reimbursement) + Rs.1000/ (telephone reimbursement), the loss of dependency comes to Rs.25253/. 31 The average income of the deceased can be taken as Rs. 25253 + 50% of Rs.25253/. It comes to Rs.37879.50/. Since there are four petitioners, therefore, one third of the amount shall have to be deducted towards the personal expenses of the deceased. Therefore, the loss of dependency of the petitioners comes to Rs.25253/p.m. 32 Keeping in view the age of the deceased, the proper multiplier shall be 16. {See Sarla Verma's case (supra) } Po MACT Sangeeta K.Mithal Vs. Rahul Malik Page no.15 of 21 16 33 The following amount shall be just and fair compensation:
1. Loss of dependency (25253 x 12x16)= Rs.48,48,576/
2. For loss of love and affection = Rs. 1,00,000/ *
3. Funeral Expenses = Rs. 5,000/
4. Loss of estate = Rs. 10,000/
5. For loss of consortium = Rs. 10,000/ Total Rs. 49,73,576/ (Rupees Forty nine lakhs seventy three thousand five hundred seventy six only) • In view of the law laid down by the On'ble Supreme Court in case titled as Baby Radhika Gupta Vs. OIC Ltd & Others 2010 ACJ 758 followed by our own Hon'ble High Court in New India Assurance Company Ltd. Vs. Bali Ram Bansals and Others, In MAC appeal no. 257 of 2010 and CM appeal no. 74637464 of 2010 decided on 26/4/2010.
It includes the interim award of Rs.50,000/ already paid to the petitioners.
Apportionment:
34 From out of the awarded amount, petitioner No.2, 3 and 4 shall get Rs.2,00000/ each.
Petitioner No.1 shall get Rs.43,23,576/. Release Po MACT Sangeeta K.Mithal Vs. Rahul Malik Page no.16 of 21 17 35 The shares of petitioners No.3 and 4 are ordered to be released.
36 The share of petitioner No.2 is ordered to be kept in her FD till she attains the age of 18 years. No loan or advance is to be given on her FD.
37 From out of the amount awarded to Petitioner No.1, a sum of Rs.1,23,576/ with interest is ordered to be released. The balance amount of Rs.42,00,000/ is ordered to be kept in her FD for the following periods:
1. Rs.5,00000/ for a period of two years
2. Rs.5,00000/ for a period of thee years
3. Rs.5,00000/ for a period of four years
4. Rs.5,00000/ for a period of six years
5. Rs.10,00000/ for a period of seven years
6. Rs.12,00000/ for a period of eight years INTEREST 38 The petition was filed on 26.2.2002. Issues were framed on 2.1.2004. The petitioners had closed their evidence on 11.8.2006. After closure of evidence of the respondents, an application on behalf of the petitioners to Po MACT Sangeeta K.Mithal Vs. Rahul Malik Page no.17 of 21 18 summon I.O was moved which was disposed off on 13.5.2008. The evidence of the I.O was recorded on 26.11.2008. Thereafter the case remained pending for evidence of R2. Ultimately the evidence of R2 was closed on 18.3.2009. Thereafter the case remained pending for hearing final arguments. During this period, the arguments could not be heard because of the nonavailability of the Presiding Officers for various reasons and transfer of the matter from one court to another. There is no material to withhold the interest to the petitioners. The petitioners are accordingly awarded interest at the rate of 7.5% p.a from the date of filing of the petition till realization. 39 This issue is also decided in favour of the petitioners and against the respondents.
ISSUE NO.2 40 Whether R2 is not liable to pay compensation on account of the preliminary objections taken in its written statement? OPR2".
Po MACT Sangeeta K.Mithal Vs. Rahul Malik Page no.18 of 21 19 41 R2 has not produced any evidence. Merely because the driver, owner and insurer of the alleged Tata 407 has not been impleaded, it does not mean that the petitioners are not entitled to claim compensation from respondents herein. It was for the petitioners to choose as to from whom they wanted to claim the compensation. In the case of composite negligence, the liability of both sets of parties would be joint and several and the the claimants have option from whom to claim the compensation. Apportionment of the liability interse of the joint tort feasors is not permissible. (See Surinder Bhai Chunni Lal Shah vs. Oriental Insurance Co. 2009 ACJ 2525 (Gujrat) and New India Assurance Vs. ACJ 2281 (Delhi). 42 R1 being the driver of the offending vehicle is the principal tortfeasor . R3 being owner and R2 being the insurer are vicariously liable. All the respondents are held jointly and severally liable to pay the awarded amount. However, since the offending vehicle was insured with R2, Po MACT Sangeeta K.Mithal Vs. Rahul Malik Page no.19 of 21 20 therefore, it shall pay the awarded amount by depositing account payee cheques in favour of the petitioners. 43 This issue is accordingly decided in favour of the petitioners and against the respondents. Relief 44 In view of the findings on issues no. 1,2 and 3 the petitioners are awarded Rs. 49,73,576/ (Rupees forty nine lakhs seventy three thousand five hundred seventy six only) with interest @ 7.5 % from the date of filing of the petition i.e. 26.2.2002 till realization. The respondents are held jointly and severally liable to pay the awarded amount. However, R2 being insurer shall pay the awarded amount by depositing account payee cheques in favour of the petitioners within 30 days from today failing which interest @ 12 % per annum shall be charged w.e.f. 20.12.2011.
45 R2 to file the calculation of the amount deposited. A copy of the calculation be sent to the petitioners.
Po MACT Sangeeta K.Mithal Vs. Rahul Malik Page no.20 of 21 21 46 Petitioners are directed to place on record their photographs, copy of election Icards or any other document (if not filed earlier) to establish their identities. 47 Copy of the award be given to both the parties (free of cost).
48 Ahlmad to keep the photostat copy of the first and last page of the award and to put the same on 17.1.2012. to find out as to whether the order has been complied with by R2 or not. In case, the amount is found to have been deposited before 17.1.2012, he need not put up the papers on 17.1.2012.
49 Nazir to calculate the amount of compensation and attach the calculation with the award. 50 File be consigned to the record room.
Announced in open court
dated 17.11.2011 (H.S.SHARMA)
Presiding Officer,
Motor Accidents Claims Tribunal,
Patiala House Courts,
New Delhi
Po MACT
Sangeeta K.Mithal Vs. Rahul Malik Page no.21 of 21
22
IN THE COURT OF SH.H.S SHARMA, DISTRICT JUDGE & ADDL.SESSIONSJUDGE/ PRESIDING OFFICER, MOTOR ACCIDENT CLAIM TRIBUNAL, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI Sangeeta K Mithal vs. Rahul Malik 17.11.2011 Present: None Vide separate judgment dictated to the steno, award is passed .
The petitioners are awarded Rs. 49,73,576/ (Rupees forty nine lakhs seventy three thousand five hundred seventy six only) with interest @ 7.5 % from the date of filing of the petition i.e. 26.2.2002 till realization. The respondents are held jointly and severally liable to pay the awarded amount. However, R2 being insurer shall pay the awarded amount by depositing account payee cheques in favour of the petitioners within 30 days from today failing which interest @ 12 % per annum shall be charged w.e.f. 20.12.2011.
R2 to file the calculation of the amount deposited. A copy of the calculation be sent to the petitioners.
Petitioners are directed to place on record their photographs, copy of election Icards or any other document (if not filed earlier) to establish their identities.
Copy of the award be given to both the parties Po MACT Sangeeta K.Mithal Vs. Rahul Malik Page no.22 of 21 23 (free of cost).
Ahlmad to keep the photostat copy of the first and last page of the award and to put the same on 17.1.2012 to find out as to whether the order has been complied with by R2 or not. In case, the amount is found to have been deposited before 17.1.2012, he need not put up the papers on 17.1.2012.
Nazir to calculate the amount of compensation and attach the calculation with the award.
File be consigned to the record room.
( H.S.SHARMA) DJ/PO MACT,ND/ 17.11.2011 Po MACT Sangeeta K.Mithal Vs. Rahul Malik Page no.23 of 21