Delhi District Court
Smt. Ajay Kumari vs Niranjan Singh & Ors. on 16 January, 2017
IN THE COURT OF MS. MADHU JAIN, PRESIDING OFFICER: MOTOR
ACCIDENT CLAIMS TRIBUNAL: SOUTH EAST DISTRICT/SAKET
COURTS COMPLEX/NEW DELHI
Suit No. 69/15, MACT No. 3141/16
FIR No. 502/2014, Police Station Ghaziabad, Kotwali, District Ghaziabad
Smt. Ajay Kumari Vs Niranjan Singh & Ors.
Unique Identification number : 02406C0140992015
Fatal Case
1. Smt. Ajay Kumari W/o Sh. Pramod Kumar (aged about 48 years)
2. Sh. Pramod Kumar S/o Sh. Raj Singh (aged about 50 years)
R/o House no. WZ80, 1st Floor, Titarpur, Tagore Garden, New Delhi
Also at House no. 132, Village Jujhaila, PSShivala Kalan,
District Bijnor, Uttar Pradesh
.............Petitioners/claimants
VERSES
1. Sh. Niranjan Singh S/o Sh. Ram Dhari (driver)
R/o VillageTilpata Karanwas Noida,
DistrictGautam Budh Nagar, Uttar Pradesh
2. Sh. Ram Dhari S/o Sh. Parmal Singh (owner)
R/o 76, Village Tilpata Karanwas, Noida,
DistrictGautam Budh Nagar, Uttar Pradesh
3. Reliance General Insurance Company Limited
Plot no. 60, Okhla Industrial Estate , Phase3,
Opp. SBI Bank, New Delhi 110020
......................Respondents
Date of Institution : 20.02.2015
Date of reserving judgment/order : 16.01.2017
Date of Pronouncement : 16.01.2017
MACT No 3141/16 Smt. Ajay Kumari Vs Niranjan Singh & Ors page no.1/15
JUDGMENT:
1. Present claim proceedings have been initiated on the basis of claim petition under section 166/140 of Motor Vehicle Act filed by petitioners on 20.02.2015.
2. The claimants/petitioners in the present case are Smt. Ajay Kumari (mother of deceased aged about 48 years) and Sh. Pramod Kumar (father of deceased aged about 50 years)
3. Brief facts of the case are that on 21.12.2014 at about 05.00am deceased Tushar Kumar Shekhawat alongwith his uncle Vijender Singh were going on motorcycle bearing number UP20V1690. Deceased was driving the motorcycle and Vijender Singh was pillion rider on the above motorcycle. Both were proceeding towards his village Jujhela PS Shivala Kalan District Bijnor, UP from Delhi. When they reached at Ghanta Ghar Fly over then suddenly offending vehicle i.e. TATA 407 bearing registration number UP16H 9032 being driven by respondent no. 1/driver in rash and negligent manner came from front side and hit the motorcycle. Due to which they both fell down on the road. Deceased Tushar Kumar Shekhawat sustained grievous injuries all over his body. After accident, deceased was removed to MMG Hospital, Ghaziabad , thereafter due to serious condition of the deceased, he was removed to Yashoda Hospital, Ghaziabad where he died during treatment.
4. FIR no. 502/2014 U/s 279/338/427/304A IPC, Police Station Ghaziabad, Kotwali, District Ghaziabad was registered. During investigation police prepared the site plan of the place of occurrence, conducted mechanical inspections of motorcycle and offending TATA 407, collected postmortem of deceased and arrested respondent no.1 driver. On completion of investigation found respondent no. 1 accused of rash and negligent driving hence MACT No 3141/16 Smt. Ajay Kumari Vs Niranjan Singh & Ors page no.2/15 chargesheeted him for the commission of offence u/s 279/338/427/304A of IPC.
5. During proceedings, reply/written statement have not been filed by respondent no. 1 and respondent no. 2.
6. During proceedings, respondent no. 3 filed its written statement. It is stated that insurance company is not liable to pay any amount of compensation in case, it is found that the driver of the vehicle bearing number UP16H9032 was not holding valid and effective driving licence at the time of alleged accident or that he was not driving the vehicle as per the instructions of the insured/owner of the vehicle. It is further stated that insurance company is not liable to pay any amount of compensation in case, it is found that at the time of alleged accident the owner of the vehicle bearing number UP16H9032 was not holding valid permit, certificate of fitness and certificate of registration for plying his vehicle on road as required under the provisions of MV Act. It is further stated that accident was not caused because of rash and negligent driving of the driver of offending vehicle rather it was the deceased Tushar Kumar Shekhawat who was negligent while driving motorcycle bearing number UP20V1690 at the time of accident and or it is a case of contributory negligence on the part of the deceased. It is stated that vehicle bearing number UP16H9032 was insured with the insurance company under policy number 1313542349000498 for the period from 16.10.2014 to 15.10.2015.
7. From pleadings following issues were framed vide order dated 03.11.2015 which are as under :
1. Whether the deceased received fatal injuries in the accident which took place on 21.12.2014 at about 05.00am involving offending vehicle i.e. MACT No 3141/16 Smt. Ajay Kumari Vs Niranjan Singh & Ors page no.3/15 TATA 407 i.e. bearing number UP16H9032 due to rash and negligent driving of respondent no. 1/driver, owned by respondent no. 2/owner, and insured by respondent no. 3 (insurance company)? OPP
2. To what amount of compensation the petitioner is entitled to claim and from whom?
3. Relief.
8. During evidence, petitioner Pramod Kumar examined himself as PW1. He tendered his affidavit of evidence and relied upon certain documents i.e. attested copies of criminal case record are collectively Ex. PW1/A (running into page no. 1 to 13), copy of election I card of deceased is Ex. PW1/B (OSR), copies of educational qualification certificates of deceased are collectively Ex. PW1/C (running into page no. 1 to 3), copy of death certificate of deceased is Mark A, copy of letter of Intent pertaining to job issued from M/s Tech Squad Today Pvt Ltd dated 10.10.2013 is Mark B, copy of adhar card of deceased Ex. PW1/D (OSR), copy of driving licence of deceased Ex. PW1/E (OSR). In his cross examination, he stated that he is graduate by B.A (arts). He is a farmer. He is earning Rs. 1 lac to 1.5 lacs per annum. He is not an eye witness of the accident. At the time of accident, his deceased son was employed with some company in Delhi but he does not know the name of the said company. He has not filed any document pertaining to the employment of his son except Mark B i.e letter of intent. He has not filed any appointment letter issued from the said company. He further stated that it is correct that offered salary mentioned on Mark B is Rs. 1,20,000/ per annum plus performance incentive. He denied the suggestion that job of his son was never confirmed by the said company. He further stated that he has not filed any documentary evidence regarding the salary of his deceased son.
MACT No 3141/16 Smt. Ajay Kumari Vs Niranjan Singh & Ors page no.4/15
9. During evidence, petitioner also examined Sh. Vijender Singh S/o Sh.
Chander Pal Singh as PW2. This witness tendered his evidence by way of affidavit which is Ex. PW2/A. In his cross examination, he stated that he has come upon the asking of Pramod Kumar, father of deceased to depose before this hon'ble court. He further stated that at the time of accident, he was also travelling as a pillion rider on the motorcycle driven by the deceased. They both were wearing helmets. Police has recorded his statement. The FIR was lodged on his statement. He also received simple injuries in the accident but he has no bills. He has never taken treatment in the hospital. It is denied that the accident occurred due to the negligent driving of deceased.
10. During evidence, petitioner also examined Sh. Alakshendra Chauhan, Director, Tech Squad Today, Pvt Ltd, New Moti Nagar as PW3. This witness has brought some documents i.e. Ex. PW3/A is the authority letter, Ex. PW3/B is the appointment letter of deceased, Ex. PW3/C (colly 3 pages are the salary slip and Mark X is the PAN card of PW3. In his cross examination, he stated that deceased Tushar Sikhawat was not under ESI Scheme and no provident fund was being deducted from the salary. There is no employees accidental policy in the company and no amount had been given under this head. The company had not paid any compensation to the family of deceased for the said accident.
11. During evidence, petitioner also examined Himanshu Asri, Director, Tech Squad Today Pvt Ltd , New Moti Nagar as PW4. This witness stated that he is the Director of the above said company where the deceased Tushar Shekhwat was working. He has brought incentive certificate which are Ex. PW4/1 (colly 6 pages). In his cross examination, he stated that he has no personal knowledge of the present case. He has brought the record pertaining to incentive paid to MACT No 3141/16 Smt. Ajay Kumari Vs Niranjan Singh & Ors page no.5/15 the deceased Tushar Kumar Shekhawat. He joined the company on 14.10.2013.
12. No evidence has been led by any of the respondents.
13. After hearing the arguments and considering the material on record my issue wise findings are as follows :
Issue No.1 (Negligence):
14. PW1 Pramod Kumar (father of deceased) in his affidavit of evidence stated that his deceased son sustained fatal injuries in the accident caused by offending vehicle being driven by respondent No. 1 in rash and negligent manner. Nothing came in her cross examination to disbelieve her version. Police during investigation also found that the said accident was caused due to the rash and negligent driving of respondent no.1, hence chargesheet him for commission of offences under section 279/338/427/304A of IPC.
15. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court, M.P. in case titled as "Basant Kaur & Ors Vs. Chattar Pal Singh and Ors" [2003 ACJ 369 MP (DB)], wherein it has been held that registration of a criminal case against the driver of the offending vehicle is enough to record the finding that the driver of offending vehicle is responsible for causing the accident. Further it has been held in catena of cases that the proceedings under the Motor Vehicles Act are not akin to the proceedings as in civil suit and hence strict rules of evidence are not required to be followed in this regard. I am also being guided by the judgment of Hon'ble High Court of Delhi in "National Insurance Company Limited Vs. Pushpa Rana" (2009 ACJ 287), wherein it was held that in case the petitioner files the certified copy of the criminal record or the criminal MACT No 3141/16 Smt. Ajay Kumari Vs Niranjan Singh & Ors page no.6/15 record showing the completion of the investigation by the police or the issuance of charge sheet under Section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo or the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It is also settled law that the term rashness and negligence has to be constructed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
16. In view of these circumstances and above discussion, petitioners are able to prove that deceased suffered fatal injuries due to rash and negligent driving of the R1. Accordingly, the issue No. 1 is decided in favour of the petitioners and against the respondents.
Issue No. 2 (Compensation):
17. Hon'ble Apex Court in Sarla Verma Vs. DTC (AIR 2009 SC 3104) comprehensively dealt with the relevant principals relating to the assessment of compensation in death cases. Apex Court in this case observed that in fatal accident, the measure of damage is pecuniary loss suffered or is likely to be suffered by each dependent as a result of death, and basically only three facts need to be established by the claimants for assessing compensation in case of death : (a) age of the deceased or claimant whichever is higher, (b) income of the deceased and (c) number of dependents.
18. Age of deceased Tushar Singh Shekhawat: PW1 Pramod Kumar filed on record copy of adhar card (Ex. PW1/D) of deceased Tushar Shekhawat and MACT No 3141/16 Smt. Ajay Kumari Vs Niranjan Singh & Ors page no.7/15 also filed high School Marksheet (Ex. PW1/Ccolly) of deceased wherein his date of birth is mentioned as 13.01.1990. Therefore, he is around 24 years at the time of accident i.e. 21.12.2014. In "Ram Dayal & Anr Vs Ram Nibash & Ors passed by Hon'ble High Court of Delhi on 21.01.2016 by Hon'ble Justice Sh. R.K.Gauba in MAC App. 1012/2015, it has been held that : "it is well settled that the choice of multiplier is determined by the age of the deceased or that of the claimant whichever is higher {reliance upon Kerala State Road Transport Corporation Vs Susamma Thomas (1994) 2 SCC 176; U.P.SRTC V. Trilok Chandana (1996) 4 SCC 362; New India Assurance Co. Ltd Vs Shanti Pathak (Smt) & Ors (2007) 10 SCC 1 and Sarla Verma V. Delhi Transport Corporation (2009) 6 SCC 121} In the copy of election I card of Smt. Ajay Kumari i.e. mother of deceased wherein her age is mentioned as 38 years as on 01.01.2003, therefore, she was around 49 years old at the time of accident i.e 21.12.2014, thus relevant multiplier in the present case is 13 ("Ram Dayal & Anr Vs Ram Nibash & Ors passed by Hon'ble High Court of Delhi on 21.01.2016 by Hon'ble Justice Sh. R.K.Gauba in MAC App. 1012/2015).
19. Income: PW1 in his affidavit of evidence stated that his deceased son Tushar Kumar Shekhawat was working as Technical Executive (Operation) in Tech. Squad Today Pvt. Limited, A191, New Moti Nagar, New Delhi110015 and was getting salary of Rs.35,000/ per month at the time of his demise. He further stated that both petitioners were dependent upon the income of the deceased. Deceased used to pay Rs.30,000/ per month towards household expenses. For proving the income of the deceased, petitioners examined two MACT No 3141/16 Smt. Ajay Kumari Vs Niranjan Singh & Ors page no.8/15 witnesses. First witness is Sh. Alakshendra Chauhan, Director, Tech Squad Today, Pvt Ltd, New Moti Nagar as PW3. This witness has brought some documents i.e. Ex. PW3/A is the authority letter, Ex. PW3/B is the appointment letter of deceased, Ex. PW3/C (colly. 3 pages) are the salary slips and Mark X is the PAN card of PW3. In his cross examination, he stated that deceased Tushar Sikhawat was not under ESI Scheme and no provident fund was being deducted from the salary. There is no employees accidental policy in the company and no amount had been given under this head. The company had not paid any compensation to the family of deceased for the said accident. Second witness is Sh. Himanshu Asri, Director, Tech Squad Today Pvt Ltd , New Moti Nagar as PW4. This witness stated that he is the Director of the above said company where the deceased Tushar Shekhwat was working. He has brought incentive certificate which are Ex. PW4/1 (colly6 pages). In his cross examination, he stated that he has no personal knowledge of the present case. He has brought the record pertaining to incentive paid to the deceased Tushar Kumar Shekhawat. He joined the company on 14.10.2013. Salary slips of deceased for the month of September 2014, October 2014 and November 2014 are on record (Ex. PW3/C) issued from Tech Squad Today Pvt Ltd, New Moti Nagar, New Delhi15. Salary slip of November 2014 shows that deceased Tushar Shekhawat was working in the abovesaid company as Tech. CSE and earning Rs. 15,400/ per month which included basic salary of Rs. 10,000/ & HRA of Rs. 1950/. PW4 Sh. Himanshu Asri, Director of M/s Tech Squad Today Pvt Ltd in his testimony filed on record incentives certificate which is Ex. PW4/1 (colly6 pages) for the month of Jun 2014 to November 2014. PW1 filed on record high school marksheet issued from UP, B.Sc (partIII computer Science 2009) marksheet issued from Mahatma Jyotiba Phule, Rohilkhand University Bareilly and also filed marksheet of Master of computer application final year issued from Uttarakhand Technical University, Dehradun. Salary slip MACT No 3141/16 Smt. Ajay Kumari Vs Niranjan Singh & Ors page no.9/15 of November 2014 shows that deceased Tushar Shekhawat was working in the abovesaid company and he was earning Rs. 15,400/ per month which included basic salary of Rs.10,000/ & HRA of Rs.1,950/. Hence, monthly income of petitioner is taken as Rs.11,950/ per month (Rs.10,000/ + Rs.1,950/).
20. Deduction for personal and living expenses: Deceased was found to be unmarried son, thus as per Sarla Verma's case (supra) for the death of unmarried son, ½ income of the deceased is to be deducted towards personal and living expenses.
21. Future prospects: Learned counsel for petitioners has argued that future prospects of deceased should be considered. As per record, deceased was around 24 years at the time of accident and there was a constant increase in his salary from timetotime. Had he been alive, his salary would have increased. Petitioners have also relied upon Sanjay verma Vs Haryana Roadways 2014 ACJ 692 (SC), Mirajuddin Vs Shonki Ram & Ors MAC App 604/2011 dated 03.12.2013 (Delhi), Reliance General Insurance Company Litimed Vs Haresh Kumar @ Harish Kumar MAC App no. 399/12 dated 27.05.2014 (Delhi), Uttranchal Transport Corporation Vs. Navneet Jerath 2013 ACJ 1966 (Delhi), Neerupam Mohan Mathur Vs New India Assurance Company 2013 (14) SCC 15]. Hence, his monthly income is assessed around (Rs.11,950/ + Rs. 50% of Rs.11,950/= Rs.17,925/.
22. Loss of dependency: After due calculation, loss of dependency comes to: Rs.17,925/X12X1/2X13 = Rs.13,98,150/.
MACT No 3141/16 Smt. Ajay Kumari Vs Niranjan Singh & Ors page no.10/15
23. Funeral Expenses: Though petitioner has not stated in her affidavit of evidence, therefore, this Tribunal has obliged to grant just compensation under this head. However, it is presumed that an amount of Rs.25,000/ atleast may have been spent on the last rites & rituals of the deceased. The amount of Rs.25,000/ is hence, awarded on account of funeral expenses.
24. Loss of Love & Affection : Petitioners have lost their young son, hence a sum of Rs.1,00,000/ is granted towards loss of love and affection.
25. Loss of Estate: The petitioner is also entitled for loss of estate in respect of death of deceased. Accordingly, an amount of Rs. 50,000/ is passed in favour of the petitioner towards loss of estate.
26. The total compensation is assessed as under : S.No. Description Amount 1 Loss of Dependency Rs.13,98,150/ 2 Funeral Expenses Rs.25,000/ 3 Loss of Love & Affection Rs.1,00,000/ 4 Loss of Estate Rs.50,000/ Total Rs.15,73,150/
27. Hence, the petitioners are awarded a total amount of Rs.15,73,150/ (Rupees Fifteen Lac Seventy Three Thousand One Hundred and Fifty Only) which is to be apportioned equally between the petitioners.
RELIEF
28. I hereby award an amount of Rs.15,73,150/ (Rupees Fifteen Lac Seventy MACT No 3141/16 Smt. Ajay Kumari Vs Niranjan Singh & Ors page no.11/15 Three Thousand One Hundred and Fifty Only) as compensation with interest @ 9% per annum, from the date of filing the present petition, i.e., till the date of realization of the amount, in favour of the petitioners and against the respondents on account of their liability being joint and several.
29. The driver R1 is the principal tort feasor whereas R2 being the owner is vicariously liable for the acts of R1, R3 being insurance company is liable to indemnify the owner.
30. In view of the above discussion, insurance company is directed to deposit the award amount in the court within a period of 30 days from today alongwith the interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay.
Release of awarded amount:
31. Share of petitioner No. 1 (Smt. Ajay Kumari, mother of deceased): A sum of Rs.7,86,575/ alongwith proportionate interest thereon, is awarded to the petitioner No. 1 being mother of the deceased. Out of this amount, Rs.1,86,575/ alongwith proportionate interest be immediately released to the petitioner on realization. And for balance amount of Rs.6 lacs alongwith proportionate interest thereon be kept in form of FDRs in the following phased manner :
1. Rs. 1,00,000/ for period of 1 year
2. Rs. 1,00,000/ for period of 2 years
3. Rs. 1,00,000/ for period of 3 years
4. Rs. 1,00,000/ for period of 4 years
5. Rs. 1,00,000/ for period of 5 years
6. Rs. 1,00,000/ for period of 6 years MACT No 3141/16 Smt. Ajay Kumari Vs Niranjan Singh & Ors page no.12/15
25. Share of petitioner No. 2 (Pramod Kumar, father of deceased): A sum of Rs.7,86,575/ alongwith proportionate interest thereon, is awarded to the petitioner No. 2 being father of the deceased. Out of this amount, Rs.1,86,575/ alongwith proportionate interest be immediately released to the petitioner on realization. And for balance amount of Rs.6 lacs alongwith proportionate interest thereon be kept in form of FDRs in the following phased manner :
1. Rs. 1,00,000/ for period of 1 year
2. Rs. 1,00,000/ for period of 2 years
3. Rs. 1,00,000/ for period of 3 years
4. Rs. 1,00,000/ for period of 4 years
5. Rs. 1,00,000/ for period of 5 years
6. Rs. 1,00,000/ for period of 6 years
26. Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
32. In terms of the directions given by Hon'ble High Court in case titled "Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
33. As per orders of Hon'ble High Court in case titled " New India Assurance Co. Ltd. Vs. Ganga Devi & ors. Bearing MAC. App.135/2008" as well as in another case titled as "Union of India Vs. Nanisiri" bearing MAC Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants.
34. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit/ savings account by Hon'ble High Court, respondent No. 3 is directed to deposit the awarded amount in favour of the petitioner with MACT No 3141/16 Smt. Ajay Kumari Vs Niranjan Singh & Ors page no.13/15 State Bank of India, Saket Courts Complex Branch, against accounts of petitioners. Within a period of 30 days from today, failing which respondent No. 3 insurance company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
35. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "Fixed deposit/saving account" in the following manner:
(i) The interest on the fixed deposit be paid to the petitioners/claimants by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to claimants/ petitioners after due verification and the Bank shall issue photo identity Card to claimants/petitioners to facilitate identity.
(iii) No cheque book be issued to claimants/petitioners without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original pass Book shall be given to the claimants/ petitioners alongwith photocopy of the FDR's.
(v) The original fixed deposit receipts shall be handed over to claimants/ petitioners at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii) Half yearly statement of account be filed by the Bank in this court.
(viii) On the request of claimants/petitioners, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
(ix) Claimants/petitioners shall furnish all the relevant documents for opening MACT No 3141/16 Smt. Ajay Kumari Vs Niranjan Singh & Ors page no.14/15 of the Saving Bank Account and Fixed Deposit Account to Branch Manager, state Bank of India, Saket Courts Complex Branch, New Delhi.Directions for the respondent No. 3
/ insurance company
36. The Respondent No. 3 Insurance company is directed to file the compliance report of their having deposited the awarded amount with the State Bank of India, Saket Court Branch in this tribunal within a period of 30 days from today.
37. The Respondent shall intimate to the claimants/petitioners about it having deposited the cheques in favour of petitioners in terms of the award, at the address of the petitioners mentioned at the title of the award, so as to facilitate them to withdraw the same.
38. Copy of this award/judgment be given to all concerned.
39. Put up the matter for compliance on 18.02.2017.
Announced in open Court
Dated:16.01.2017 (Madhu Jain)
POMACT02 (SE)Saket, New Delhi
16.01.2017
MACT No 3141/16 Smt. Ajay Kumari Vs Niranjan Singh & Ors page no.15/15