Delhi District Court
) Sh. Surender Singh S/O Sh. Ronak Singh vs ) Sh. Ram Babu @ Bhola S/O Sh. Bachhan ... on 4 July, 2012
1
IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT & SESSIONS
JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
ROHINI COURTS, DELHI
(MACT No. 833/10)
1) Sh. Surender Singh S/o Sh. Ronak Singh
2) Smt. Parveen W/o Sh. Surender Singh
Both resident of H. No.T-12, Gali no.2,
Shivaji Nagar, Narela, Delhi-110040.
--------------Petitioners
Versus
1) Sh. Ram Babu @ Bhola S/o Sh. Bachhan Yadav,
R/o H. No.595, Village Mundka, Delhi-110041
2nd Add: C/o Sh. Vikram Lakra, H. No.688 & 755,
Harijan Basti, VPO Mundka, Delhi-110041.
2) Sh. Vikram Lakra S/o Sh. Bal Kishan
H. No.688 & 755, Harijan Basti,
VPO Mundka, Delhi-110041.
3) Bajaj Allianz General Insurance Co. Limited
service through its Director / General Manager
A-3, Sector-4, Noida, UP.
-----------Respondents
Date of institution-------03.01.2009
Date of decision---------04.07.2012
(APPLICATION U/S 166 AND 140 OF MOTOR VEHICLES ACT
FOR GRANT OF COMPENSATION)
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JUDGMENT:-
As per averments made in the petition, on 25.08.2008 at about 3.55am Sh. Jagdeep Singh (hereinafter referred to as deceased) aged about 21 years alongwith his colleague took part in Janmasthmi Mela at Loni Ghaziabad, UP and were bringing back the catering goods / articles / equipments in Tempo Tata 407 2 HR-55-5870 and the deceased was standing in the middle of the Tempo by catching hold the iron rod fitted in the middle of the Tempo. The Tempo was being driven by respondent no.1 at a very high speed, without blowing horn, rashly, carelessly and negligently in contravention of traffic rules and regulations, due to which the middle iron rod of the Tempo got broken down and all of a sudden deceased Jagdeep Singh and one Atma Prakash fell down on the road and deceased sustained fatal injuries and Atma Prakash sustained grievous injuries on their person. Thereafter on 25.08.2008 Jagdeep Singh died in the hospital due to injuries suffered in the alleged accident. Thereafter, a criminal case was registered against respondent no.1 vide FIR No.374/2008 U/s 279/337/304A IPC in police station Narela, Delhi. It is further averred that accident took place due to rash and negligent driving on the part of the driver of the offending Tempor and there was no negligence on the part of the deceased.
Petitioner no. 1 being father and petitioner no. 2 being mother of the deceased alleged that the deceased was aged about 21 years and was enjoying excellent health. It is further averred that deceased was a well qualified person and was working as Computer Operator and was earning Rs.6,000/- per month. They claimed sum of Rs.15 lakhs as compensation along with interest @ 12% p.a. from respondents no. 1 being owner/driver and respondent no.2 being insurance company of the offending vehicle.
Respondents no.1 has filed a written statement denying the averments of the petition. Respondent no.3/Insurance Company has filed the written statement admitting that the offending vehicle was insured with it but tried to avoid its liability on various technical grounds stating that vehicle in question was goods carrying vehicle with seating capacity of driver and cleaner, therefore, any person other than driver and cleaner is not covered under the policy and it is a breach of terms and conditions of in insurance policy issued to respondent no.2 and hence it is not liable to pay any amount of compensation to the petitioner. It is further averred that at the 3 time of accident the insured in violation of policy rules entrusted the alleged vehicle to a person voluntarily and willingly for use and alleged person / driver was not holding a valid and effective driving licence to drive the alleged vehicle.
On the basis of pleadings of the parties, following issues were framed on 16.11.2011 by my Ld. Predecessor:
1). Whether the deceased Jagdeep Singh S/o Sh. Surender Singh received fatal injuries in the motor vehicle accident occurred on 25.08.2008 at about 3.55am at Ram Dev Marg, Ram Dev Chowk, S. B. Road, Narela, Delhi, due to rash and negligent driving of R-1 of vehicle no. HR-55-5870? OPP
2). Whether the petitioners are entitled to compensation, if so, to what extent and from which of the respondents? OPP
3). Relief.
Petitioners during pendency of the case were paid interim compensation of Rs. 50,000/- along with interest u/s 140 of Motor Vehicles Act on account of no fault liability.
In order to prove their case, petitioners i. e. legal heirs of the deceased have examined three witnesses in all i. e. petitioner no.1 Sh. Surender Singh as PW1, Sh. Gurmukh Singh - eye witness as PW2 and Sh. Om Parkash - eye witness of the accident as PW3.
Petitioner no. 1 Sh. Surender Singh, father of the deceased has proved on record certified copy of Superdari proceedings as Ex.PW1/1, copy of Election I-card of petitioner no.1 as Ex.PW1/2, copy of Election I-card of petitioner no.2 as Ex.PW1/3, certificate of Computer Education as Ex.PW1/4, another certificate of computer education issued by ISAS as Ex.PW1/5, original salary certificate of deceased is Ex.PW1/6 and copy of criminal case record is Ex.PW1/7.
4PW2 Sh. Gurmukh Singh brother of deceased and PW3 Om Prakash, both being eye witnesses of the occurrence have deposed about factum of accident, the way it has taken place. They further deposed that alleged accident had taken place due to rash and negligent driving of offending vehicle by its driver.
On the other hand only two witnesses have been examined on behalf of respondent no.3 / Insurance Company, namely Sh. Vishesh Thakur, Sr. Executive (Legal) as R3W1 and Sh. Ashutosh Singh, Nodal Officer of Insurance Company as R3W2.
R3W1 Sh. Vishesh Thakur, Sr. Executive of Insurance Company has proved policy of vehicle bearing no.HR-55-5870 as Ex.R3W1/1, copy of notice u/o 12 R. 8 CPC issued to the owner / driver of offending vehicle, as Ex.R3W1/2, postal receipts of the same as Ex.R3W1/3 & Ex.R3W1/4. R3W2 Sh. Ashutosh Singh - Nodal Officer of the Insurance Company / Respondent no.3 has deposed that Insurance Company has appointed an Investigator to find out the actual facts.
I have heard counsel for the parties and gone through the record of the case. My decision on the above mentioned issues is as under;
ISSUE NO. 1:-
The principles to be followed in the case of motor accident claim have been laid down by the Hon'ble High Court of Guwahati in case cited as Renu Bala Paul and Ors. vs. Bani Chakraborty and Ors. 1999 ACJ 634 by Hon'ble Guahati High Court that:
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be 5 proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society.
N.K.V. Bros (P) Ltd. vs. M.Karumai Ammal & Ors. (1980) 3 SCC 475, Hon'ble Supreme Court has observed as under:-
"In Road accidents are one of the top killers in our country, especially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or 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 niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
Hence the standard of proof though lesser than civil and criminal case, but some evidence is required to brought on record to show that the accident was caused due to rash and negligent driving of offending vehicle. The eye witnesses have been examined by petitioners as PW-2&3. They in their affidavit in evidence disclosed how and in which manner accident took place and entirely blamed driver of offending vehicle in causing the accident. Nothing adverse could come in the cross-examination of the witnesses to discard their version. It is not the case of the 6 respondent no.1 that he knew either the deceased or the eye witnesses before hand or that IO has any grudge against him, though he is facing prosecution. There is nothing on record to show that respondent no.1 had lodged any complaint to any higher authority regarding alleged false implication in criminal case. There is also no evidence on record to point out that respondent no.1 had any enmity with deceased or his family members or eye witnesses or investigation officer to create possibility of false implication of respondent no.1 in criminal case. Respondent no.1 had not came forward to cross-examine the eye witnesses PW3 nor led his own evidence and had chosen to remain out of the court from which it can be presumed that he had no defence and is indirectly admitting all the allegations. Both eye witnesses and the criminal case record have corroborated the story of the accident having being caused by the driver of the offending vehicle by driving the vehicle in a rash and negligent manner. In view of the above discussions it is crystal clear that accident took place due to the sole negligence on the part of driver by driving the offending vehicle in a rash and negligent manner and there was no negligence on the part of the deceased. In view of the above discussions, this issue is decided in favour of petitioners and against the respondents.
ISSUE NO. 2:-
Petitioners are entitled to both pecuniary and non pecuniary damages. As per original salary certificate Ex.PW1/6 deceased was employed with Pagepoint Services (India) Pvt. and was earning a sum of Rs.6,000/-, which fact is not disputed by the respondents. Hence, it has been proved by leading evidence on record that deceased was earning Rs.6,000/- per month. As far as the factum of petitioners being the legal heirs of deceased is concerned, it is not disputed. They were financially dependent upon the deceased at the time of accident. As per record the age of accused is 21years at the time of death, so future prospectus of 50% has to be added in his income as per Sarla Verma's decision. Hence the monthly income of deceased comes to Rs.9000/- (Rs.6,000/- + 50%).7
As already discussed above, the age of the deceased was approximately 21 years and he was unmarried at the time of his death. Hence, in view of the judgment of Hon'ble Supreme Court given in Pushpa & Others Vs National Insurance Co. Ltd. & Another reported in 2011 ACJ 2140, multiplier of 18 has to be applied upon the income of the deceased.
Deceased had left behind two dependents i. e. his father and mother. Hon'ble Supreme Court in Sarla Verma vs. DTC 2009 (6) SCALE 129 has held that father is generally not treated as dependent upon the son, so accordingly it can be said that only one petitioner was dependent upon the deceased at the relevant time. In view of the decision of Sarla Verma's case, the deduction of 1/2 nd from the salary of deceased has to be made upon his personal expenses. Hence after deducting 1/2nd from monthly income of Rs.9,000/-, monthly dependency comes to Rs.4500/- per month. Accordingly, in this case, loss of dependency is assessed at Rs.7,56,000/- (4500/- x 12 x 14). Hence, the petitioners are only entitled to Rs.7,56,000/- on account of loss of dependency.
Petitioners have averred that they have spent over the last rites and rituals of the accused but not brought on record any document regarding the same. It is a judicial noticeable fact that normally some expenses are incurred upon cremation, Chotha or Theharvin ceremonies etc. Hence, I deem it proper to grant lump sum amount of Rs.20,000/- as funeral charges.
Petitioners are in my view also required to be awarded sum of Rs.20,000/- towards loss of estate and a sum of Rs.1,00,000/- towards Loss of care and services. I also award a sum of Rs.2,00,000/- towards Loss of love and affection, loss of company and support, trauma and loss of other discomfort after relying upon the judgment of Delhi High Court in case Sajha vs. National Insurance Co. Ltd. 2010 ACJ 627.
8Respondent no. 3 insurance company has taken a defence that deceased as an unauthorized passenger in the vehicle in question and hence it is not liable to pay any compensation amount to the petitioners and in support of his contentions has relied upon the judgments of Hon'ble Supreme Court in case titled National Insurance Co. Ltd. Vs Cholleti Bharatamma & Others reported in 2008 (2) TAC 374 (SC), National Insurance Co. Ltd. Vs Bommithi Subbayamma and others reported in 2005 ACJ 721, National Insurance Co. Ltd. Vs Ajit Kumar & Ors. reported in 2003 ACJ 1931, M. V. Jayadevappa & anr. reported in 1 (2005) ACC 472 (SC), National Insurance Co. Ltd. Vs Rattani & Others reported in 2009 (1) TAC 420 SC and National Insurance Co. Ltd. Vs Bhukya Tara and others reported in II (2009) ACC 545 (SC). However, the same are declined being not applicable to the facts of the present case. To rebut the defence of the Insurance Company, counsel for petitioner has relied upon the judgments of Hon'ble High Court in case titled National Insurance Co. Ltd. Vs Hasnu and others reported in 2011 ACJ 123, it is held that and another case titled New India Assurance Co. Ltd Vs Bhudiya Devi, wherein it is held that in case of death of a passenger in truck, who was travelling in the vehicle alongwith his cows and buffaloes, Insurance company is liable to pay compensation.
Another defence taken by the insurance company is that the documents of the offending vehicle were not proper or genuine. Contentions heard and record perused. Insurance company is not able to prove from any evidence that it is entitled to be exonerated and is not liable to pay the compensation amount as ordered by the court. Hence, the respondent no.3 shall be liable to pay the entire compensation amount.
After considering the merits of the case, petitioners are entitled to get the following total compensation from the respondent no. 3 Insurance company :
9Pecuniary Damages
a) Funeral charges ======================Rs. 20,000/-
b) Loss of dependency=================== Rs. 7,56,000/- Non Pecuniary Damages
a) Loss of love and affection etc.============Rs. 2,00,000/-
b) Loss of Estate ======================= Rs. 20,000/-
c) Loss of care and services=============== Rs. 1,00,000/-
-------------------------------
Total Rs. 10,96,000/-
--------------------------------
Hence, petitioners are entitled to a compensation amount of Rs. 10,96,000/-. Petitioners shall also be entitled to interest at the rate of 12% p.a on this amount from 03.01.2009 till realization. This issue is decided accordingly in favour of petitioners and against the respondents.
ISSUE NO. 3 (Relief):-
On the basis of findings given above, present petition is disposed off and an award is passed. Respondent no. 3 insurance company is directed to pay within 30 days a sum of Rs.10,96,000/- to the petitioners along with interest at the rate of 12% p.a. From 03.01.2009 till this amount is fully paid, if payment is not made within 30 days interest @ 15% will be paid by the Insurance Company.
It is ordered that entire compensation amount deposited in the joint name of petitioner nos. 1 & 2 in the form of FDR with State Bank of India, Rohini District Courts, Delhi, for the period of five years with a liberty to withdraw monthly interest through savings bank account. It is made clear that FDR shall not be encashed without permission of the court. No loan or advance shall be given on the FDR except with prior permission of court. Respondent no.3 insurance company is directed to prepare the separate cheques of the compensation amount as per above 10 order. Insurance company is directed to make a payment of Rs.75,000/- + Rs. 10,000/- out of pocket expenses by way of cheque in favour of counsel for the petitioner Sh. Ram Kumar Prabhakar, Adv.-Enrl. no.381/99, as per judgment of Hon'ble High Court in case titled Sat Prakash Vs Jagdish reported in II (2010) ACC 194 passed by justice J.R. Midha.
Respondent no.3 insurance company is directed to prepare the separate cheques of the compensation amount as per above order. Copy of this judgment be given to petitioners and counsel for respondent no.3 insurance company for compliance. File be consigned to record room.
Announced in the open (D.K. MALHOTRA)
Court on 04.07.2012 JUDGE, MACT (OUTER-II)
DELHI / 04.07.2012