Delhi District Court
Omi @ Om Dutt vs Delhi Transport Corpn on 2 July, 2014
IN THE COURT OF MS. KIRAN BANSAL
P.O. MOTOR ACCIDENT CLAIMS TRIBUNAL:
NORTH-EAST DISTRICT : KKD COURTS : DELHI
MACT No. 80/10
Unique Case Identification No:- 02402C0066612010
1. Omi @ Om Dutt
S/o Sh. Chotan 49 years (Father)
2. Smt. Shakuntala
W/o Sh. Omi @ Om Dutt 42 years (Mother)
3. Sangeeta
D/o Sh. Omi @ Om Dutt 20 years (Sister)
4. Sarita
D/o Sh. Omi @ Om Dutt 18 years (Sister)
5. Kavita
D/o Sh. Omi @ Om Dutt 16 years (Sister)
6. Rachna
D/o Sh. Omi @ Om Dutt 14 years (Sister)
All are residents of
Village Dolla, Distt. Baghpat (U.P.)
Versus
1. Delhi Transport Corpn.
Through its Chairman, I.P. Estate, New Delhi (Owner)
2. Sh. Satya Narain
S/o Sh Mauji Ram
Badge No. 12694, Hari Nagar, Part - II
(The Services be effected through D.M. HND - II) (Driver)
3.United India Insurance Co. Ltd. (Insurance Co.)
D.O.-11,85, Himalaya House, 8th Floor,
K.G. Marg, New Delhi - 1
......... Respondents
Through :
Mr. V.K. Sharma, Advocate for petitioner Mr. Jai Bhagwan, Advocate for respondent no. 1 and 2.
Kiran Bansal P.OMACT (NorthEast), 02/07/2014 MACT No. 80/10 Page 1/12 Mr. S. Ghosh, Advocate for Insurance Co.
i) Date of Institution of claim petition : 10/03/2010
ii) Date when fixed for Orders : 23/04/2014
iii) Date of Decision : 02/07/2014
APPLICATION U/S 166 & 140 M.V. ACT 1988
FOR GRANT OF COMPENSATION
AWARD
1. LRs of deceased Sandeep have filed the present claim petition under Sec. 166 & 140 of MV Act stating that on 07/02/2010 at about 8:45 AM deceased was going on foot to take the bus from Ambedkar College Bus stand, Near Loni Gole Chhakar. Suddenly a DTC bus bearing no. DL 1PB 2780 came from behind which was being driven by respondent no. 2 in a rash and negligent manner and hit the deceased with force due to which deceased fell down on the road and had sustained multiple injuries. He was immediately taken to GTB hospital where he was declared brought dead.
The FIR No. 45/10 u/sec 279/304 A IPC was also registered at PS Gokul Puri in this respect.
2. Summons of the claim petition were issued to the respondents. WS was filed by respondent no. 1 and 2 denying the accident due to the involvement of offending vehicle.
Respondent no. 3 United India Insurance Co. has also filed WS. They have admitted that the vehicle No. DL 1P B 2780 was insured with them for the period from 02/01/2010 to 01/01/2011 bearing Insurance Policy No. 041100/31/09/02/00004073.
Kiran Bansal P.OMACT (NorthEast), 02/07/2014 MACT No. 80/10 Page 2/12
3. On the basis of the pleadings of the parties, following issues are framed:-
1. Whether deceased Sandeep son of Sh. Omi @ Om Dutt died because of injuries sustained in motor accident caused by rash and negligent driving of vehicle i.e DTC Bus bearing registration no DL 1PB 2780 on 07.02.2010 at about 8:45 a.m., in front of Ambedkar College, Bus stand, Wazirabad Road, Delhi, within the jurisdiction of Police Station Gokul Puri? OPP.
2. Whether petitioners are entitled to compensation? If so, to what amount and from whom? OPP
3. Relief
4. I have heard the counsels for both the parties and gone through the entire evidence on record carefully. My issue wise findings are as below :5. ISSUE NO. 1
Whether deceased Sandeep son of Sh. Omi @ Om Dutt died because of injuries sustained in motor accident caused by rash and negligent driving of vehicle i.e DTC Bus bearing registration no DL 1PB 2780 on 07.02.2010 at about 8:45 a.m., in front of Ambedkar College, Bus stand, Wazirabad Road, Delhi, within the jurisdiction of P.S. Gokul Puri? OPP.
Petitioner no. 1 has examined himself as PW1 however, he is not an eye witness to the accident. Petitioner has examined Sh. Maan Singh as PW2, an eyewitness who deposed about the facts of the case. He was cross- examined by respondent no. 1 & 2 and ld. Counsel for Insurance Co. and during cross-examination nothing has come forward in his testimony to Kiran Bansal P.OMACT (NorthEast), 02/07/2014 MACT No. 80/10 Page 3/12 disbelieve the version of PW2. He has also examined Sh. Vijay Sharma as PW3. Respondent / driver has examined himself as R2W1 and denied the accident but he has admitted that he is facing trial in FIR No. 45/2010. He has also examined Sh. Sadhu Ram as R2W2.
Driver / respondent though has stated that no accident occurred with his vehicle but has admitted during his cross-examination that he is facing trial in the court of concerned Ld. MM. There is no previous enmity between driver of the offending vehicle and the petitioners. No reasons have been given as to why vehicle of the respondent no. 1 would be involved without any previous enmity. Also eye witness Sh. Maan Singh has clearly deposed that he was traveling in the offending vehicle when the accident occurred and they have asked driver to remove the boy to the hospital but the driver had fled away with the bus towards Bhajanpura side and therefore, eye witness could not get down from the bus. This eye witness is not having any relation with the deceased and is an independent witness. The testimony of eye witness is consistent and creditworthy. His statement u/sec 161 Cr. PC was also recorded on 07/02/2010. Copy of statement u/sec 161 Cr. PC is also available on record and the same has been perused. As per driver, he was on the route on the date of accident but according to him he has started trip at 8:45 PM and thus, could not have reached the spot at 9:05 PM as it takes around 45 minutes from Anand Vihar to Loni Gol Chakkar. As per PW2, accident took place at around 8:45 AM. It was in the morning hour only that the bus was on route on the said date and time. There may be gap of 10-15 minutes but that itself would not made out a case that the deposition of PW2 is false.
Kiran Bansal P.OMACT (NorthEast), 02/07/2014 MACT No. 80/10 Page 4/12 In Judgement Sudershan Singh Vs. Ravinder Uppal and Others 2013 ACJ 742 it has been held that claim petition under Motor Vehicles Act stands on higher pedestal than a civil suit, the same being filed under an Act , the intent of which is to confer benefit on the victims of motor accidents. It has further been observed that procedure and technicalities cannot be allowed to defeat the purpose of the Act. In Judgement Kalpana Devi and Others Vs. Jhagru Pandit and Others, II (2012) ACC 446 also it has been held that merely because name of witness is not mentioned in the FIR, his evidence cannot be outrightly rejected on this ground alone and if the evidence of the witness is just and reasonable and there is no inherent infirmity in evidence of witness, then his evidence should not be rejected.
In both the judgements namely H.S. Swarnalatha and Others Vs. Vice Chairman & Managing Director, Karnataka State Road Transport Corporation, 2011 ACJ 990 and Maya Azhagar and another Vs. Thangiah and another, 2012 ACJ 2529 it has been held that degree of proof before criminal court is beyond reasonable doubt while degree of proof before Tribunal is preponderance of probabilities and that the findings of criminal court are not binding on the Tribunal. It has further been observed that the Tribunal has to independently assess the evidence placed before it.
In the present case DAR was filed by the IO. In this detailed accident report, copy of FIR, Postmortem report, site plan and mechanical inspection report have been filed.
In a judgment reported as National Insurance Company Ltd. Vs. Pushpa Rana and other, 2009 ACJ 287 the Hon'ble High Court of Delhi has held that certified copies of criminal court, such as FIR, recovery memo Kiran Bansal P.OMACT (NorthEast), 02/07/2014 MACT No. 80/10 Page 5/12 and mechanical inspection report of vehicle are sufficient proof to reach the conclusion that driver was negligent. Proceedings under M. V. Act are not akin to proceedings in a civil suit and hence, strict rules of evidence are not required to be followed in this regard.
Therefore, in view of the statement PW2 Sh. Maan Singh and the record of the criminal case regarding the accident, it is proved that the deceased Sandeep sustained fatal injuries in the accident which occurred on 07/02/2010 due to rash and negligent driving of offending vehicle bearing no. DL 1PB 2780 driven by its driver i.e Respondent no. 2. The issue is decided accordingly.6. ISSUE NO. 2
Whether petitioners are entitled to compensation, If so, to what amount and from whom?
As per the father of the deceased, the deceased was earning Rs. 8,000/- per month and was doing the job of housekeeping in PVR Mall. Petitioner has placed on record copy of attendance register which is Ex. PW3/1 and computer generated copy of salary drawn wherein his salary has been mentioned as Rs. 5950/- which is Ex. PW3/2 (colly). It is submitted by PW1 that his son also used to do over time work. PW1 has stated that deceased was aged about 22 years and as per the 10th standard certificate, and marksheet Ex. PW1/3 and PW1/4 respectively, the date of birth of deceased is 11/08/1988 . As per the postmortem report, the age of the deceased was 22 years and therefore, the deceased was of the age of 22 years on the date of accident.
Kiran Bansal P.OMACT (NorthEast), 02/07/2014 MACT No. 80/10 Page 6/12 In "Rajesh & Ors. Vs Rajbir Singh & Ors 2013 (6) Scale 563 " it was held by the Hon'ble Apex Court in para 11 as follows :
"Since, the Court in Santosh Devi's case (supra) actually intended to follow, the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age.
In other words, in the case of self-employed for persons with fixed wages, In case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any.
Addition should be 30% in case the deceased was in the age group of 40 to 50 years".
7. On the other hand, counsel for respondents submit that since there is no fixed employment, the future prospects cannot be considered. The argument of the counsel for respondents is not sustainable as there is no law which bars a person without fixed employment to develop and improve his standard of life and his capacity to earn more. Even otherwise, the quantum of Minimum Wages itself, is revised time to time by the Government which only proves that there is a scope for future prospects even to the labourers of unorganized sector.
8. In "ICICI Lombard General Insurance Company Ltd. Vs Angrej Singh & Ors. MAC.A.No.846/2011", the Hon'ble High Court of Delhi considered various judgments on the aspect of granting future Kiran Bansal P.OMACT (NorthEast), 02/07/2014 MACT No. 80/10 Page 7/12 prospects and held as under:
"While considering the case of Santosh Devi, the Apex Court did not feel to refer the matter to a Larger Bench. Therefore, it can be concluded that there is no contradictions in the finding of Sarla Verma and Santosh Devi, in turn the Apex Court extended the scope and ambit of Sarla Verma through Santosh Devi.
In view of above, this court is guided by the legal principles as set out in Reshma Kumari and Rajesh in order to assess the just compensation as it is envisaged in Section 168 of Motor Vehicles Act, 1988. In Reshma Kumari, the Apex Court affirmed the findings of Sarla Verma, and in Rajesh, the Hon'ble Supreme Court has agreed with the dictum of Santosh Devi.
Specifically, for the assessment of future prospects in respect of the persons falling under the category of self-
employment /fixed wages this court is guided by the dictum laid down in Rajesh.
In my considered opinion, there is no contradiction in the dictum laid down by the Apex Court in the cases of Reshma Kumari and Rajesh".
9. It was further held that Angrez Singh (Supra) that the increase in the minimum wages has to be taken into consideration while assessing the compensation, on account of future prospects.
Ld. Counsel for Insurance Co. has argued that as the mother of the deceased is aged 42 years and therefore, multiplier applicable would be of 14 whereas as per the ld. Counsel for the plaintiff, as the Kiran Bansal P.OMACT (NorthEast), 02/07/2014 MACT No. 80/10 Page 8/12 deceased was aged 22 years, multiplier of 18 should be applicable on the basis of the age of the deceased and not of the basis of age of mother of the deceased.
10. In M. Mansoor & Anr. Vs. United India Insurance Co. Ltd. & Anr., 2013 STPL(web)860SC, Supreme Court of India and Amrit Bhanu Shali & Ors. Vs. National Insurance Co. Ltd. & Ors. 2012 VI AD(S.C.) 399 Civil Appeal no. 3397 of 2012, it has been held that the selection of multiplier is to be based on the age of the deceased and not on the basis of the age of dependents.
11. In Mohd. Hasnain & Ors. Vs. Jagram Meena & Ors. MAC. ACC 152/2014 decided by Hon'ble Justice Suresh Kait, of Hon'ble High Court of Delhi, decided on 24.03.2014, the question of appropriate multiplier in the case of unmarried deceased was raised and the issue, whether the multiplier is to be ascertained on the basis of age of the deceased or on the basis of age of the claimants was answered.
It was held that in the ascertainment of purchasing capacity of the victim, the age of the claimant has no relevance because of the fact that it has no nexus with the assessment of the loss of dependency. It was further held that ........(i) age of the deceased (ii) income of the deceased and (iii) number of dependents are to be taken into account for the purpose of selecting the multiplier. In the assessment of dependency, the courts/tribunals are computing the purchasing capacity of the deceased; not the claimants and therefore, the age of the victim is the proper factor for selecting the correct multiplier.
As per dictum laid down in Mohd. Hasnain Vs. Jagram Meena's case multiplier to be applied is 18. The deceased is unmarried. As per father of the deceased , the deceased was contributing his salary towards household Kiran Bansal P.OMACT (NorthEast), 02/07/2014 MACT No. 80/10 Page 9/12 expenses and was the only bread earner of their family. There is no evidence to show that the father of the deceased i.e petitioner no. 1 was dependent upon the deceased. PW1 has admitted during cross-examination that he is working as a daily wage labourer and therefore, he is not considered as one of the dependents of the deceased. However, looking to the fact there were other five female members in the family of the deceased ie. Mother and four younger sisters, the deceased must have been contributing a substantial portion of his income towards the need of his family and must have been sharing burden of his family alongwith his father. It is not uncommon in India that an elder son starts contributing to his family and starts sharing financial burden of his family with his father at early stage of his life, especially in families belonging to poor strata of society. Therefore, 1/3rd is deducted towards personal expenses. Therefore, the total loss of dependency would be calculated as follows :
Rs. 5950/-+ Rs. 2975/- (50% towards future prospects) = Rs. 8925/- Rs. 8925-Rs.2975 (1/3 towards personal expenses) = Rs. 5950/- (Per month) X 12 (Annual) X 18 (Multiplier) = Rs. 12,85,200/-
Besides this, petitioners are also entitled for compensation under the following heads:-
Love and affection Rs. 100,000/-
Loss of Estate Rs. 10,000/-
Funeral expenses Rs. 25,000/-
Total Rs.1,35,000/-
Thus, the total compensation would amount to Rs. 14,20,200/-.
Kiran Bansal P.OMACT (NorthEast), 02/07/2014 MACT No. 80/10 Page 10/12
12. Liability Respondent no.3 is the insurance company which admittedly has issued a valid insurance policy to the offending vehicle. Respondent no.3 being insurance company in its written statement has admitted that there is valid insurance policy issued from 02/01/2010 to 01/01/2011 forming part of the Insurance Policy No. 041100/31/09/02/00004073. There is no evidence on behalf of respondent no.3 to show that there was any violation of the rules and terms of policy by the respondents no.1 & 2. Hence, I am of the opinion that respondent no.3 being insurance company is liable to pay the compensation on behalf of respondents no.1 & 2.
13. Relief Award is passed directing Respondent no. 3, M/s United India Insurance Co. to pay to the claimant/petitioners no.2 to 6 a sum of Rs. 14,20,200/- in the ratio of 40:15:15:15:15 by way of depositing cross cheque in favour of petitioner no. 2 to 6, along with interest @ 9% per annum from the date of filing of the claim petition (i.e. 10/03/2010). If award is not complied within 30 days, respondent no.3 shall pay penal interest @ 12% p.a. for the default period. Upon deposit of award amount, cheque be deposited in any nationalized bank and the bank manager of said bank is directed to prepare FDR of the 50% of the award amount in their name for a period of five years with monthly interest to be credited in their saving bank accounts and the remaining amount be released to petitioner no.2 to 6. Branch Manager shall comply with following directions :-
(a) Withdrawal from the aforesaid account shall be permitted to Kiran Bansal P.OMACT (NorthEast), 02/07/2014 MACT No. 80/10 Page 11/12 the petitioners after due verification and the bank shall issue photo identity card of petitioners to facilitate identity.
(b) No cheque book be issued to the petitioners without the permission of the court.
(c) 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 petitioners along with photocopy of the FDRs.
(d) The original fixed deposit receipt shall be handed over to the petitioners on the expiry of the period of the FDRs.
(e) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of the court.
(f) Half yearly statement of account be filed by the bank in the court.
(g) The petitioners shall furnish all the relevant documents for opening of the saving bank account and fixed deposit account to the Branch Manager, any nationalized bank.
14. Put up for compliance on 02/08/2014.
Attested copies of the award be furnished to the concerned parties from court for compliance.
Pronounced in Open Court on (KIRAN BANSAL)
02/07/2014 P.O. MACT(North-East)
KKD Delhi
Kiran Bansal
P.OMACT (NorthEast), 02/07/2014
MACT No. 80/10 Page 12/12