Delhi District Court
Smt. Rajni vs Icici Lombard General Insurance Co. Ltd on 10 October, 2011
1
IN THE COURT OF MS.POONAM CHAUDHARY
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.: 579/11
DATE OF INSTITUTION: 22.07.2008
Unique ID No. 02403C0876742008
1. Smt. Rajni
W/o Late Sh. Sachin Yadav
2. Ms. Anjali
D/o Late Sh. Sachin Yadav
3. Ms. Deepanshi
D/o Late Sh. Sachin Yadav
4. Sh. Santosh Kumar Yadav
S/o Sh. Karan Singh Yadav
5. Smt. Shiksha Wati
W/o Sh. Santosh Kumar Yadav
All R/o RZG56A, Mandir Marg
Mahavir Enclave, Palam, New Delhi45 ............... Petitioner.
Versus
1. ICICI Lombard General Insurance Co. Ltd.
Birla Tower, 5 Floor, 25, Barakhamba Road
th
New Delhi (Insurer)
2. Manu Bansal
S/o Sh. Kailash Narayan
R/o H.No. 3, Rajdhani Enclave,
Pitampura, Shakur Basti, New Delhi34 (Owner)
3. Chaggan Lal
S/o Sh. Narmada Prasad
2
R/o Ward no. 7, Cantt., Tehsil
Neem Ka Thana, Distt. Sikar,
Rajasthan (Driver)
.....................Respondents
Final Arguments heard on : 17.09.2011 Award reserved for : 10.10.2011 Date of Award : 10.10.2011 AWARD
1. This judgment cum award I shall decide the petition U/s 166 and 140 of Motor Vehicle Act, 1988 as amended up to date (hereinafter referred to as the Act) filed by the petitioner for grant of compensation for death in a road accident.
2. Briefly stated the facts giving rise to the petition are that on 18.04.2008 deceased Sachin Yadav was returning in a car bearing no. DL3CAK8889 to Delhi from Neem Ka Thana, Distt. Sikar, Rajasthan after attending the marriage of his relative. It is alleged that the driver cum owner of the said vehicle died at the spot. It is alleged that the deceased was sitting on the front seat and the eyewitness Ajay Kumar was sitting on the rear seat. It is also alleged that when the said vehicle reached near turn at Peer Ki Chowki, Tan Mahwa, Neem ka Thana, Distt. Sikar, Rajasthan, respondent no. 2 lost control of the vehicle as he was driving 3 rashly and negligently and could not turn and struck against a tree on the side of the road. It is further stated that as a result of the impact of the accident the offending vehicle turned turtled to 34 times as it was at a very high speed. It is further stated that left hand of deceased was amputated at the spot. Thereafter he was removed to Jaipur Hospital where he scummed to injuries on the same day. It is also alleged that postmortem of the deceased was conducted. It is further stated that information of the accident was given to the police by an eyewitness Sh. Jai Narayan and FIR no. 192/08 was lodged U/s 279/337/304A IPC was registered at PS Neem Ka Thana with regard to the accident. It is further stated that statement of eyewitness Ajay Kumar was also recorded by the IO later on. It is further stated that deceased was 28 years of age at the time of accident and he was in a good health and was earning Rs. 8,750/ per month besides food conveyance of Rs. 2,000/ per month and was the sole earning member of his family.
3. It is also averred that the deceased was looking after for supervisory work of a gas agency. It is further stated that deceased was about to be promoted and he would have earn Rs. 10,000/ per month besides getting conveyance and diet charges of Rs. 2,000/ per month. Thus, the deceased had bright future prospects. It is also stated that father of the deceased is suffering from various ailments and is not working whereas 4 mother of the deceased is handicapped and was dependent upon the deceased.
4. It is also stated that respondent no. 1 insurer, respondent no. 2 (the LRs of the driver and owner who died in the accident) and respondent no. 3 the superdar of the offending vehicle are jointly and severally liable to pay compensation. It is prayed that Rs. 25,00,000/ (Rs. Twenty Five Lacs) be awarded as compensation and interim award be also passed U/s 140 of the Act in favour of the petitioners against the respondents with interest at the rate of 24% per annum from the date of filing of petition till its realisation in favour of the petitioners against the respondents.
5. The respondent no. 1, contested the petition on various grounds interalia that the liability of respondent no. 1 was subject to the terms and conditions of the insurance policy. It was alleged that the driver of the alleged offending vehicle was not holding a valid and effective driving licence at the time of accident as such no liability could be fastened on respondent no. 1. The averments regarding the age and income of the deceased were denied. The factum of accident was denied and it is also denied that respondent no. 1 was liable. It was however, admitted that the alleged offending vehicle bearing no. DL3CAK8889 was insured with respondent no. 1 in the name of one Manu Bansal w.e.f 16.05.2007 to 15.05.2008. It was also alleged that respondent no. 1 was liable. 5
6. Respondent no. 2 the legal heir of the deceased driver and respondent no. 3 were proceeded exparte as they did not appear despite service.
7. On the pleadings of the parties, the following issues were framed:
1. Whether the accident occurred on 18.04.2008 was due to rash and negligent driving of vehicle bearing registration no.
DL3CAK8889, Honda CRV driven by respondent no. 2, leading to fatal injuries to the husband of petitioner no. 1? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3.Relief.
8. In support of their claim petitioner examined PW1 the wife of deceased, she tendered her evidence in examination in chief by way of affidavit Ex.PW1/A reiterating therein the contents of the petition. She also stated that deceased was working for Manu Bansal the driver of the offending vehicle and was given a motorcycle for doing the job. In her cross examination on behalf of respondent no. 1 she stated that she was not an eyewitness to the accident. She also stated that she is an housewife. She also stated that her motherinlaw was handicapped and her fatherinlaw was not working. She also stated that she had filed a copy of the ration card with the petition but had not filed it with her affidavit. She also stated that she had not filed documentary proof of salary of the deceased. She 6 denied that she was not dependent on the income of the deceased and also denied that she was deposing falsely.
9. Petitioner also examined Sh. Santosh Kumar Yadav the father of deceased as PW2, he also tendered his evidence by way of affidavit Ex.PW2/A He corroborated the version of PW1. He proved the certified copies of the rukka Ex.PW2/1, FIR Ex.PW2/2, statement of eyewitness as Ex.PW2/3 and Ex.PW2/4, seizure memo of offending vehicle Ex.PW2/5, mechanical inspection report of the offending vehicle Ex.PW2/6, driving licence of driver of offending vehicle Ex.PW2/7, Registration certificate and insurance of offending vehicle Ex.PW2/8 and Ex.PW2/9 respectively, site plan Ex.PW2/11 and Ex.PW2/12, final report Ex.PW2/13, postmortem report Ex.PW2/14, death certificate of the deceased Ex.PW2/16, matriculation certificate of the deceased Ex.PW2/17, report U/s 174 Cr.P.C Ex.PW2/21, superdiginama of the offending vehicle Ex.PW2/22, ration card of petitioners Ex.PW2/28. He also filed the handicapped certificate of his wife which was Mark A. He also stated that the deceased was looking after a gas agency as a supervisor and used to file income tax return. The acknowledgement of return was proved as Ex.PW1/18.
10. In his crossexamination he stated that he was not an eyewitness to the accident and also stated that he was living in a joint family with deceased. He also stated that he was earning Rs. 4,000/ to 5,000/ per month, but 7 he had not filed any documentary proof in respect of his salary. He also stated that he had filed income tax return of the deceased but he had not filed any document in respect of future prospects of the deceased. He also stated that his daughter in law did not remarry. He also stated that his wife was handicapped. He denied that he was not dependent upon the deceased. Petitioners thereafter closed their evidence.
11. On the other hand no evidence was led by respondent no. 1 and respondent no. 2 and 3 were proceeded exparte accordingly RE was closed.
ISSUE NO. 1
12. As the petition has been filed U/s 166 Motor Vehicle Act it was incumbent upon the petitioners to prove that the accident was caused due to the rash and negligent driving of the vehicle by respondent no. 1.
13. To determine the negligence it has been held in 2009 ACJ 289 National Insurance Ltd. Vs. Pushpa Rana and Ors as follows:
"Negligence evidence admissibility of document certified copy of criminal court, such as FIR recovery memo and mechanical inspection report of vehicle are documents of sufficient prove to reach the conclusion that driver was negligent. Proceedings under Motor Vehicles Act are not akin to proceedings in a civil and hence strict rules of evidence are not required to be followed in this regard".8
14. In this regard petitioners have proved the certified copies of the criminal record i.e. FIR no. 192/08 with regard to the accident U/s 279/337/304A IPC at PS Sikar against the driver of the offending vehicle according to which the vehicle bearing no. DL3CAK8889 was involved in the accident. The seizure memo of the offending vehicle, its mechanical inspection report. The final report filed against the driver of the offending vehicle who had died in the accident. Moreover no other version of the accident was brought on record by the respondents no. 2 and 3. These documents are sufficient proof to reach the conclusion that the accident was caused due to the rash and negligent driving of the driver of the offending vehicle. Accordingly, issue no. 1 is decided in favour of the petitioner and against the respondents.
ISSUE NO. 2
15. As issue no. 1 has been decided in favour of the petitioner they are entitled to compensation. As regards the quantum of compensation PW1 and PW2 stated that deceased was earning Rs. 8,750/ per month and was getting Rs. 2,000/ as conveyance and diet allowance. PW1 stated in her crossexamination that she had not filed any documentary proof of salary of the deceased. PW2 had stated that he had filed the income tax return of the deceased for the assessment year 200708 according to which the total income of deceased was 1,05,011/ per annum. However, 9 no witness was examined to prove the income tax returns of the deceased neither his salary certificate was filed to show on the basis of which income tax return was filed. Thus, the income of the deceased has to be assessed as per the chart available in the Minimum Wages Act. The deceased was matriculate as per his High School certificate Ex.PW2/17. On the date of accident, minimum wages for a matriculate was Rs. 4,082/ the same is rounded of Rs. 4,100/ per month, thus his income is taken as Rs. 4,100/ per month.
16. As income of deceased has been assessed on the basis of Minimum wages Act, the increase in wages under Minimum Wages Act on inflation trends are to be considered as held in II (2008) ACC, 770, National Insurance Company Ltd. Vs Kailash Devi as follows: "The Tribunal has thus wrongly assessed the income of the deceased by applying the criteria laid down in Sarla Dixit's case (Supra). The income of the deceased in the present case has been assessed at Rs. 3100/ P. M. as per the Minimum Wages Act. As the respondents claimants failed to prove the claimed income of Rs. 4500/ per month by producing any cogent evidence on record and once the resort has been made to the Minimum Wages Act, therefore, the increase in the future wages under the Minimum Wages Act can certainly be taken into consideration. This court has already taken a 10 view that the increase under the Minimum Wage Act is based on the price index, inflation rate and other economic factors can not be treated at par wit the future income of a victim due to promotions, advancements in career, grant of increments and special grades, etc. Perusal of the Minimum Wages Act shows that in the past within a period of 10 years, the minimum wages almost get more than double; for instance, the minimum wages for a skilled workman in the year 1980 were Rs. 320 and the same got increased to Rs. 1043/ in the year 1990, meaning thereby that there has been an increase of 225% from the year 1980*1990, therefore, it can be safely assumed that the income of the deceased would have doubled in the next 10 years. Applying the same criteria, the income of the deceased as assessed in the year 2001 would have been increased to Rs. 6200/ and taking the average of the same it would come to Rs. 4650/ per month".
17. Thus average income of the deceased after resorting to the increase on the basis of inflation trends comes to (Rs 4,100/ x 2) + (4,100) / 2 = Rs. 6,150/.
18. Respondents no. 4 the father of the deceased is not entitled to compensation in view of the judgment of Sarla Verma Vs DTC 2009(6) SCC 121. The father of the deceased had given statement on 18.10.2010 for deletion of his name from array of the parties vide order dated 11 18.10.2011 his name was deleted from the array of parties.
19. Thus, the deceased was survived by 4 dependents as such ¼ is to be deducted towards the personal expenses of deceased in view of judgment of Sarla Verma Vs DTC 2009(6) SCC 121. After deduction of ¼ out of Rs. 6,150/ the contribution of the deceased to his family would have been Rs. 4,612.5/ rounded off Rs. 4,610/. As per the High School Certificate Ex.PW2/17 the deceased was about 28 years old at the time of accident. Thus, the multiplier applicable is 17. Thus the total loss of dependency comes to Rs. 4,610/ x 12 x 17 = 9,40,440/. I also award Rs. 20,000/ each towards loss of love and affection, loss of estate and funeral expenses and loss of consortium. The total compensation is determined as under:
Loss of dependency : Rs. 9,40,440/
Funeral Expenses : Rs. 20,000/
Loss of consortium : Rs. 20,000/
Loss of estate : Rs. 20,000/
TOTAL : Rs. 10,00,440/
RELIEF
20.I thus award Rs. 10,00,440/ (Rs. Ten Lacs Four Hundred Forty only) with interest at the rate of 7.5% from the date of filing of petition till its realisation against the respondents and in favour of the petitioner including interim award if any with interest at the rate of 7.5% from the 12 date of filing of petition till its realisation against the respondents and in favour of the petitioner including interim award if any. The liability of all the respondents being joint and several. Petitioner no. 1 shall have a share of 70% and petitioner no. 2, 3 and 5 shall have a share of 10% each.
21. For safeguarding the compensation amount from being frittered away by the beneficiaries, it has been held in G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC 176 as follows:
"in a case of compensation for death it is appropriate that the Tribunals do keep in mind the principles enunciated by this court in Union Carbide Corporation v. Union of India, 1991 (4) SCC 584, in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation. In that case approving the judgment of the Gujarat High Court in Muljibhai Ajaarambhai harijan V/s United India Insurance Co. Ltd. 1983 ACJ 57 (Gujarat), this court offered the following guidelines:
"(i) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor invested in long term fixed deposits at least till the date of the minor attaining majority. The expenses incurred 13 by the guardian or next friend may, however, be allowed to be withdrawn;
22. In view of the above judgment, out of the awarded amount, 10% share of petitioner no. 1 be released and her remaining amount shall be kept in FDR in UCO Bank, Patiala House court Branch, New Delhi for a period of 10 years. Entire amount of petitioner no. 2 and 3 shall be kept in FDR in UCO Bank, Patiala House court Branch, New Delhi till he attain majority and for 5 years thereafter. 10% share of the Petitioner no. 5 be released, her remaining amount be kept in FDR in a nationalised bank for a period of 5 years. Interest to be paid quarterly/monthly. No advance or loan shall be allowed against the FDR without permission of the court.
23.Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court Complex, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week.
14APPORTIONMENT OF LIABILITY:
24. Respondent no. 1 did not lead evidence inspite of opportunity being granted and respondent no. 2 and 3 were proceeded exparte. Thus, all the respondents are jointly and severally liable. Respondent no. 1, being the insurer is jointly and severally liable to pay compensation alongwith other respondents. Accordingly, respondent No. 1 is directed to deposit the award amount within 30 days. In case of any delay, it is liable to pay interest @ 12% per annum for the period of delay. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.
An attested copy of the award be given to the parties. File be consigned to Record Room.
Announced in the open court.
On 10.10.2011 (POONAM CHAUDHARY)
JUDGE: MACT1 : NEW DELHI