Delhi District Court
Smt. Sunita Chopra vs Gurdyal Singh (Driver) on 4 April, 2012
IN THE COURT OF REETESH SINGH,
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST),
KARKARDOOMA COURTS, DELHI.
MACT PETITION NO. 181/09
Date of institution of the case : 08.04.2009
Date on which Award was reserved : 04.01.2012
Date on which Award was pronounced : 04.04.2012
Unique ID No. 02402C0109972009
IN THE MATTER OF:
1. SMT. SUNITA CHOPRA
W/O SH. MUKESH CHOPRA
2. MUKESH CHOPRA,
SON OF SH. M.L. CHOPRA,
BOTH RESIDENT OF:-
192-C, DDA FLATS, F-BLOCK (POCKET),
DILSHAD GARDEN, NAND NAGRI,
G.T.B. ENCLAVE, DELHI-110095.
......PETITIONERS
VERSUS
1. GURDYAL SINGH (DRIVER)
SON OF MR. PYARA SINGH
RESIDENT OF VILLAGE DALA, TEHSIL KANAVA
DISTT. GURDASPUR (PUNJAB)
2. UNITED LPG TPT. COMPANY (OWNER)
THROUGH ITS DISCLOSED PROPRIETOR
MR. P.C. HIRANANDANIJ
R-40, SOUTH EXTENSION, PART II
NEW DELHI.
MACT PETITION NO. 94/09 Page No.1/12
2nd ADD; 16/5, MATHURA ROAD
FARIDABAD (HARYANA)
3. ORIENTAL INSURANCE COMPANY LTD. (INSURER)
OFFICE AT: 613-620, ANSALS CHAMBERS 2,
B.C.P.
NEW DELHI- 110066.
...... RESPONDENTS
AWARD
1. The present petition has been filed by the petitioner under the provisions of Sections 140 and 166 Motor Vehicles Act, 1988 (hereinafter referred to as the said Act) seeking grant of compensation on account of fatal injuries suffered by deceased Dhruv Chopra. The petitioners are the parents of the deceased.
2. The case of the petitioners is that on 15.05.2006, deceased Dhruv Chopra aged about 22 years was going from Delhi to Neelokheri, Haryana in Maruti Alto Car bearing registration no. DL 9CN 0264. At about 09.00pm on that date, the petitioners received a telephonic call that their son had met with a fatal accident involving truck bearing no. HR 38D 0304 being driven by respondent no. 1 and owner by respondent no. 2. It is stated at the time of his death deceased Dhruv Chopra was aged 22 years and was working with M/s SRS Human Resources Private Limited at Mumbai, Maharashtra at a salary of Rs.13,000/- per month. The deceased had joined the said company on 19.11.2005. At the time of his death, deceased was studying in second year of B.Com (H) from correspondence in Delhi University. Petitioners have stated that the deceased was brilliant in his studies and extremely hardworking and claimed Rs.50,00,000/- as compensation with interest 24% per annum.
3. FIR No.200/05 under sections 279/304A IPC dated 15.05.2006 was registered in PS Sadar, Karnal, Haryana arising out of the said accident.
4. Joint written statement has been filed by the respondent no. 1 and 2 in which they denied any negligence on their part. It is stated that the deceased MACT PETITION NO. 94/09 Page No.2/12 was responsible for the accident as he was trying to overtake the offending vehicle from the left side.
5. In its written statement, respondent no. 3 has alleged violation of the insurance policy by the respondents no. 1 and 2. It is stated that the offending vehicle was insured with it w.e.f. 26.07.2005 to 25.07.2006 and the vehicle was insured on the date of the accident.
ISSUES
6. On the basis of the pleadings, by order dated 04.03.2011, the following issues were framed:-
"1. Whether the deceased Dhruv Chopra suffered fatal injuries in an accident which took place on 15.05.2006 due to involvement of Truck no. HR 38D 0304 which was allegedly being driven rashly and negligently by respondent no. 1? (OPP)
2. Whether the petitioners are entitled to any compensation, if so, to what amount and to whom? (OPP)
3. Whether there was any contributory negligence on the part of the deceased? (OPR-3)
4. Relief."
7. In support of their case, the petitioners examined Sh. Vipin Kumar as PW-1 who is an eye witness to the accident and petitioner no. 2 as PW-2 and closed their evidence.
8. The respondents no. 1 and 2 did not appear after filing their written statement. They did not lead any evidence and were proceeded ex-parte. Respondent no. 3, insurance company has examined Sh. Hakumat Rai its Deputy Manager as R3W1, Officer from RTO, Mumbai as R3W2 and ASI Mahender Singh, IO of FIR No. 200/05, PS Sadar, Karnal as R3W3 and closed MACT PETITION NO. 94/09 Page No.3/12 evidence.
9. I have heard the counsel for the parties and perused the record of the case. My issue wise findings are as under:-
ISSUE NO. 110. In order to prove this issue, petitioners have examined Sh. Vipin Kumar, an eye witness as PW-1. He tendered his evidence by way of affidavit Ex.PW1/A in which he deposed that on the date of accident, he was driving on GT Road from Karnal and going towards the Nellokheri in his car bearing no. HR 02E 0066. The deceased was driving in front of him in Maruti Alto bearing no. DL 9CN 0264. Ahead of the vehicle of the deceased, a truck bearing no. HR 38D 0304 (offending vehicle) was plying and going in the same direction. At about 06.30pm when these vehicles reached opposite Haveli Restaurant, G.T. Karnal Road, the offending vehicle without giving any indication or signal took a sharp left turn towards a roadside Dhaba. The offending vehicle braked and turned so suddenly that the Maruti Alto car in which the deceased was traveling collided on the left side rear portion of the truck. PW-1 witnessed this accident just from the behind the Maruti Alto Car in which the deceased was traveling. He stopped his vehicle to attend to the deceased and found him to have suffered grave injuries and appeared to have died. He deposed that some persons informed the Highway Police and police officials from Sadar Police Station came at the spot. Witness deposed that the accident took place due to rash and negligent manner in which the respondent no. 1 was driving the truck.
11. PW-1 was cross examined by counsel for respondent no. 3 since respondents no. 1 and 2 did not appear after permission had been granted on an application moved by the respondent no. 3 under Section 170 of the Motor Vehicles Act, 1988. During the cross-examination, this witness stood by his testimony. He stated that the offending vehicle was about 30 feet ahead of the Maruti Alto vehicle and that there was no room to overtake the offending vehicle MACT PETITION NO. 94/09 Page No.4/12 from the right side. He denied the suggestion that the deceased was guilty of rash and negligent driving. He denied the suggestion that the accident did not take place in his presence.
12. During respondents' evidence, respondent no. 3 examined the IO of this FIR, ASI Mahender Singh. In his examination in chief, he stated that Maruti Alto car of the deceased was damaged from the front portion and the truck (offending vehicle) was damaged on its left side rear portion. Attested copy of the charge sheet filed arising out of the FIR is on record. PW-1 is the informant on whose statement this FIR has been registered. Damage found on the vehicles is consistent with the theory that the offending vehicle braked and swerved sharply to the left side due to which the vehicle in which the deceased was travelling collided with the rear left portion of the truck causing fatal injuries to the deceased.
13. From the deposition of PW-1 and R3W3 ASI Mahender Singh, it is clear that the deceased suffered fatal injuries due to involvement of the offending vehicle which was driven rashly and negligently by respondent no. 1. Accordingly, issue no. 1 is decided in favour of the petitioner and against the respondents.
ISSUE No. 214. In view of issue No. 1 being decided in favour of the petitioner, I hold that the petitioners are entitled to compensation. Petitioner no. 2, father of the deceased examined himself as PW-2. He deposed by way of affidavit Ex.PW1/1 on the lines of his petition and exhibited following documents:-
(i) Identity proof of the petitioners as Ex.PW1/A and Ex.PW1/B.
(ii) Registration Certificate of deceased as Ex.PW2/C.
(iii) Secondary School Examination Certificate of deceased as Ex.PW2/E.
(iv) Certified copy of charge sheet as Mark E (colly.).
MACT PETITION NO. 94/09 Page No.5/12
(v) Certified copy of site plan and arrest memo as Mark F.
(vi) Salary certificate of deceased as Mark A.
(vii) Break up of salary structure of deceased as Mark B.
(viii) Salary slip for November, 2005 as Mark C.
(ix) Revision of resignation of deceased as Mark D.
15. PW-2 was cross examined by counsel for respondent no. 3 in which he stated that he was not an eye witness to the accident. He denied the suggestion that his son was not employed at the time of his death.
16. Counsel for the petitioner has argued that since the deceased was working in M/s SRS Human Resources Pvt. Ltd. at a salary of Rs.13,000/- per month compensation be assessed keeping the said figure as his salary. Counsel for respondent no. 3 has argued that petitioner has not examined the employer of the deceased and therefore the salary certificate produced on record as Mark A could not be looked into.
17. Petitioners have not examined the employer of the deceased. In the absence thereof, there is no reliable evidence relating to his employment. The deceased was studying in second year in B. Com (H) through correspondence in Delhi University. This Court is inclined to consider the income of the deceased at the rate of Rs.4,031/- which was the minimum wages fixed for a graduate at the time of date of accident as the deceased was studying in second year of college and in all likelihood he would have completed his graduation. Regarding computation of income by relying on minimum wages, in the case of KIRAN DEVI & ORS versus SURJEET YADAV & ORS MAC.APP.No.511/2009 decided on 18th January, 2010, the Hon'ble High Court of Delhi was pleased to hold as under:-
"5. It is well settled by catena of judgments of this Court that the Court should take judicial notice of increase in minimum wages to MACT PETITION NO. 94/09 Page No.6/12 meet the increase in price index and inflation rate. In the case of Kanwar Devi vs. Bansal Roadways, 2008 ACJ 2182, this Court took judicial notice of the increase of minimum wages to meet the price index and inflation rate. The Court has taken the view that the minimum wages get doubled over the period of 10 years and increase in minimum wages is not akin to future prospects. In the case of National Insurance Company Limited vs. Renu Devi III (2008) ACC 134, this Court took the judicial notice of the fact that the minimum wages get almost doubled over the period of 10 years. In the case of UPSRTC vs. Munni Devi, MAC.APP.No. 310/2007 decided on 28.07.2008, this Court followed the aforesaid judgments and observed that the wages under the Minimum Wages Act became almost more than double within a span of 10 years period.
6. Following the aforesaid judgments, the income of the deceased for computation of compensation is taken to be Rs.6,150/- [(Rs.
4,100 + Rs.8,200)/2]. Taking the income of the deceased to be Rs. 6,150/-, deducting 1/4th towards personal expenses and applying the multiplier of 14, the loss of dependency is computed to be Rs. 7,74,900/- (Rs.6,150 x 12 x 3/4 x 14)."
18. Keeping in view the judgment of the Hon'ble High Court in the case of KIRAN DEVI (supra), the income of the deceased is worked out to Rs.6,047/- [(Rs.4,031 + Rs.8062)/2]. In the case of P.S. Somnathan & Ors. v. District Officer reported in 2011 (2) SCC 426 SC, the Hon'ble Supreme Court while considering its earlier judgment in the case of Sarla Verma v. DTC reported (2009) 6 SCC 121 has reiterated that multiplier is to be ascertained keeping in MACT PETITION NO. 94/09 Page No.7/12 view the age of the deceased and not age of parents of the deceased. As the deceased was aged 22 years, multiplier of 18 would be attracted. Deceased was a bachelor and therefore in terms of the case of Sarla Verma (supra) deduction of 1/2 would apply towards his personal and living expenses.
19. Accordingly, total compensation to which petitioners are entitled is worked out as under:-
(i) Multiplicand :- Rs.6,047/- Less (50%) Rs.3,023 = Rs.3,024/-
(ii) Actual Calculation:- Rs.3,024/- X 12 X 18 = Rs. 6,53,184/-
20. Apart from the above the Hon'ble Supreme Court in the case of Sarla Verma Vs. DTC reported in 2009 (6) SCC 121 has been pleased to hold that the petitioners would be entitled to compensation on account of funeral expenses, loss of estate etc. Hence I award the following amounts to the petitioners under the heads mentioned.
FUNERAL EXPENSES
21. Under this head I hold that the petitioners are entitled to Rs.7,500/-.
LOSS OF ESTATE
22. Under this head I hold that the petitioners are entitled to Rs.10,000/-.
LOSS OF CONSORTIUM / LOVE AND AFFECTION
23. As the petitioners have been deprived of their son, I hold that the petitioners are entitled to Rs.35,000/- under this head.
24. In totality, therefore, the petitioners are held to be entitled to following amount:
(a) Claim towards compensation : Rs.6,53,184/-
MACT PETITION NO. 94/09 Page No.8/12
(b) Claim towards Funeral Expenses : Rs.7,500/-
(c) Loss of Estate : Rs.10,000/-
(d) Loss of consortium / love affection : Rs.35,000/-
Total : Rs.7,05,684/-
LIABILITY
25. There is serious dispute regarding liability of bearing the assessed compensation. Counsel for respondent no. 3 has argued that the respondent no. 1 did not have a license which authorized him to drive a vehicle with hazards goods. Respondent no. 3 examined Sh. Hakumat Rai its Deputy Manager as R3W1 who deposed that he has brought verification relating to driving license of respondent no. 1 issued by license authority, Regional Transport Office, Mumbai. The license was issued for LMV (TR) and for HGV (heavy goods vehicle). He deposed that there was no endorsement for carrying heavy / hazardous goods. R3W2 who was the Junior Clerk, Regional Transport Office, Mumbai Central also deposed that the driver was not authorized to drive transport vehicle carrying hazardous goods. Since respondents no. 1 and 2 did not appear the said witness was not subject to any cross-examination. Respondents no. 1 and 2 as recorded above had not lead any evidence. Counsel for the respondent no. 3 had argued that since the respondent no. 1, driver was not authorized to drive the vehicle having hazardous goods, respondent no. 2 had violated the terms of the insurance policy.
26. Along with the petition certified copies of the charge sheet in FIR No. 200/06 PS Sadar, Karnal, has been filed. The same contains a seizure memo of the offending vehicle bearing no. HR 38 0304. As per the seizure memo the offending vehicle is a gas tanker. Such a vehicle is transporting hazardous goods. As per the evidence led by respondent no. 3, the driver of this vehicle, MACT PETITION NO. 94/09 Page No.9/12 respondent no. 1 had a license which only authorized him to drive a heavy goods vehicle and not a vehicle which carries hazardous goods. The respondent no. 3 has placed on record copy of insurance policy which contains a condition that the driver must possess a valid and effective driving license at the time of the accident. Respondent no. 1 and 2 have not led any evidence and were proceeded ex-parte. An adverse inference is drawn against them.
27. In view the evidence led by respondent no. 3, it is held that the respondent no. 1 was not holding a valid license which authorized him to drive a heavy vehicle containing hazardous goods. Hence, liability to bear the assessed compensation will be on the respondent no. 1 and 2. Respondent no. 3 is directed to deposit the assessed compensation and is granted rights to recover the same from the respondents no. 1 and 2.
28. An award for the sum of Rs.7,05,684/- is passed in favour of the petitioner and against the respondent no.1 and respondent no.2 to be borne by the respondent no.3 (with recovery rights) along with interest at the rate of 7.5% per annum w.e.f. the date of the filing of the petition minus Rs. 50,000/- awarded in favour of the petitioner vide interim award dated 31.01.2011. DISBURSEMENT
29. The Hon'ble Supreme Court in the case of Jai Prakash Vs. National Insurance Co. Ltd. reported in (2010) 2 SCC 607 in para 29 of the said judgment was pleased to note with approval a special scheme offered by UCO Bank at the instance of the Hon'ble Delhi High Court to protect and preserve the compensation amount awarded to families of deceased.
30. Respondent no. 3, the Insurance Company is hereby directed to deposit the award amount with up to date interest in UCO Bank, Karkardooma Branch, Delhi within thirty days from the date of this award under intimation to this Court failing which the same shall carry penal interest at the rate of 12% from the date of the award. The awarded amount shall be disbursed to the petitioners in MACT PETITION NO. 94/09 Page No.10/12 the following manner:-
(i) Out the amount deposited the bank shall keep 40% in fixed deposit in the name of the petitioner no. 1 for a period of three years; 40% in fixed deposit in the name of the petitioner no. 2 for a period of three years and remaining 20% be released in favour of the petitioners in equal proportions along with up to date interest after due verification.
(ii) Interest on the fixed deposit shall be paid monthly to the petitioners which shall be credited automatically in the savings account of the petitioners.
(iii) Original fixed deposit receipt shall be retained by the bank in safe custody. However, the original passbook shall be given the petitioners along with the photocopy of the FDR.
(iv) The original fixed deposit receipt shall be handed over to the petitioners at the end of the fixed deposit period and it shall be open for the petitioners to either seek renewal of the fixed deposit or release of the principal amount in his favour.
(v) Photo identity card shall be issued to the petitioners and withdrawal shall be permitted only after due verification by the bank of the identity card of the petitioners.
(vi) No cheque book shall be issued to the petitioners without the permission of the Court.
(vii) No loan, advance or withdrawal shall be allowed on the fixed deposit without the permission of the Court.
(viii) The petitioners can operate the savings bank account from the nearest branch of UCO Bank and on the request of the petitioners, the Bank shall provide the said facility.
30. An attested copy of this award along with two photographs of the MACT PETITION NO. 94/09 Page No.11/12 petitioner with Court Stamp be also sent to the Bank for facilitating the compliance.
30. Copy of this award be given free of cost to the parties.
31. File be consigned to record room.
Dictated to the Steno and announced in the Open Court today i.e. 04.04.2012 (REETESH SINGH) ADDL. DISTT. JUDGE-01 (NE) KARKARDOOMA COURTS, DELHI MACT PETITION NO. 94/09 Page No.12/12