Delhi District Court
Sh. Mohit vs Sh. Javed ( Driver) on 27 April, 2012
IN THE COURT OF SH. ARVIND KUMAR: PRESIDING OFFICER MOTOR
ACCIDENT CLAIM TRIBUNAL KARKARDOOMA COURTS: DELHI
M.A.C. Petition No: 210/10
Unique Case I.D No: 02402C0036242010
1. Sh. Mohit
S/o Late Sh. Ashok Kumar
R/o C-12/50, Yamuna Vihar,
New- Delhi-110053 ... Petitioner
VERSUS
1. Sh. Javed ( Driver)
S/o Sh. Hanif ( HR-47D-5927)
R/o Village Ibrahimwas, P.S. Firozpur Jhirka,
District Mewat, Haryana
2. Sh. Narender Singh ( owner/insured)
S/o Sh. Umrao Singh,
(Truck No. HR-47-D-5927),
R/o Village Naichana, Teh. Bawal,
District Rewari, Haryana.
3. Sh. Harish Sharma (Car No. DL-4C-AB-8089)
R/o C-256, Surajmal Vihar, Delhi-110092.
4. M/s. Bajaj Allianz General Insurance Company Ltd.
( Truck No. HR-47D-5927 & Car No. DL-4C-AB-8089)
II nd Floor, DLF Building, near Metro Station
Moti Nagar, New Delhi.
5. Mohd. Azar
S/o Mohd. Zaheer
R/o H. No. V-28, Gali No. 24,
Vijay Park, Maujpur, Delhi-110053.
( Car No. DL-4C-AB-8089). ... Respondents
Presented on : 01.06.2009
Reserved for judgment : 25.04.2012
Judgment delivered on : 27.04.2012
M.A.C. Petition No: 211/10
Unique Case I.D No: 02402C0164492009
1. Smt. Anita
W/o Late Sh. Ashok Kumar
R/o C-12/50, Yamuna Vihar,
M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 1/25
New Delhi-110053. ... Petitioner
VERSUS
1. Sh. Javed ( Driver)
S/o Sh. Hanif ( HR-47D-5927)
R/o Village Ibrahimwas, P.S. Firozpur Jhirka, District Mewat, Haryana
2. Sh. Narender Singh ( owner/insured) S/o Sh. Umrao Singh, (Truck No. HR-47-D-5927), R/o Village Naichana, Teh. Bawal, Distt. Rewari, Haryana.
3. Sh. Harish Sharma (Car No. DL-4C-AB-8089) R/o C-256, Surajmal Vihar, Delhi-110092.
4. M/s. Bajaj Allianz General Insurance Company Ltd. ( Truck No. HR-47D-5927 & Car No. DL-4C-AB-8089) II nd Floor, DLF Building, near Metro Station Moti Nagar, New Delhi.
5. Mohd. Azar S/o Mohd. Zaheer R/o H. No. V-28, Gali No. 24, Vijay Park, Maujpur, Delhi-110053.
( Car No. DL-4C-AB-8089). ... Respondents
Presented on : 01.06.2009
Reserved for judgment : 25.04.2012
Judgment delivered on : 27.04.2012
M.A.C. Petition No: 212/10
Unique Case I.D No: 02402C0164442009
1. Ms. Amita
D/o Late Sh. Ashok Kumar
R/o C-12/550, Yamuna Vihar,
New Delhi-110053. ... Petitioners
VERSUS
1. Sh. Javed ( Driver)
S/o Sh. Hanif ( HR-47D-5927)
R/o Village Ibrahimwas, P.S. Firozpur Jhirka, District Mewat, Haryana M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 2/25
2. Sh. Narender Singh ( owner/insured) S/o Sh. Umrao Singh, (Truck No. HR-47-D-5927), R/o Village Naichana, Teh. Bawal, District Rewari, Haryana.
3. Sh. Harish Sharma (Car No. DL-4C-AB-8089) R/o C-256, Surajmal Vihar, Delhi-110092.
4. M/s. Bajaj Allianz General Insurance Company Ltd. ( Truck No. HR-47D-5927 & Car No. DL-4C-AB-8089) II nd Floor, DLF Building, near Metro Station Moti Nagar, New Delhi.
5. Mohd. Azar S/o Mohd. Zaheer R/o H. No. V-28, Gali No. 24, Vijay Park, Maujpur, Delhi-110053.
( Car No. DL-4C-AB-8089). ... Respondents
Presented on : 01.06.2009
Reserved for judgment : 25.04.2012
Judgment delivered on : 27.04.2012
M.A.C. Petition No: 213/10
Unique Case I.D No: 02402C0037212010
1. Smt. Anita
Wd/o Late Sh. Ashok Kumar
R/o C-12/50, Yamuna Vihar,
New Delhi-110053. ... Petitioner
VERSUS
1. Sh. Javed ( Driver)
S/o Sh. Hanif ( HR-47D-5927)
R/o Village Ibrahimwas, P.S. Firozpur Jhirka, District Mewat, Haryana
2. Sh. Narender Singh ( owner/insured) S/o Sh. Umrao Singh, (Truck No. HR-47-D-5927), R/o Village Naichana, Teh. Bawal, District Rewari, Haryana.
3. Sh. Harish Sharma (Car No. DL-4C-AB-8089) R/o C-256, Surajmal Vihar, Delhi-110092.
4. M/s. Bajaj Allianz General Insurance Company Ltd.
M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 3/25( Truck No. HR-47D-5927 & Car No. DL-4C-AB-8089) II nd Floor, DLF Building, near Metro Station Moti Nagar, New Delhi.
5. Mohd. Azar S/o Mohd. Zaheer R/o H. No. V-28, Gali No. 24, Vijay Park, Maujpur, Delhi-110053.
( Car No. DL-4C-AB-8089). ... Respondents
Presented on : 01.06.2009
Reserved for judgment : 25.04.2012
Judgment delivered on : 27.04.2012
M.A.C. Petition No: 214/10
Unique Case I.D No: 02402C0164502009
1. Smt. Anita
Wd/o Lt. Sh. Ashok Kumar
2. Miss. Amita
D/o Late Sh. Ashok Kumar
3. Miss. Nisha
D/o Late Sh. Ashok Kumar
4. Sh. Mohit Kumar
S/o Late Sh. Ashok Kumar
All resident of C-12/50, Yamuna Vihar,
New Delhi-110053.
5. Smt. Prewati
M/o Late Sh. Ashok Kumar
6. Sh. Babu Ram
S/o Late Sh. Ashok Kumar ... Petitioners
VERSUS
1. Sh. Javed ( Driver)
S/o Sh. Hanif ( HR-47D-5927)
R/o Village Ibrahimwas, P.S. Firozpur Jhirka, District Mewat, Haryana
2. Sh. Narender Singh ( owner/insured) S/o Sh. Umrao Singh, (Truck No. HR-47-D-5927), M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 4/25 R/o Village Naichana, Teh. Bawal, District Rewari, Haryana.
3. Sh. Harish Sharma (Car No. DL-4C-AB-8089) R/o C-256, Surajmal Vihar, Delhi-110092.
4. M/s. Bajaj Allianz General Insurance Company Ltd. ( Truck No. HR-47D-5927 & Car No. DL-4C-AB-8089) II nd Floor, DLF Building, near Metro Station Moti Nagar, New Delhi.
5. Mohd. Azar S/o Mohd. Zaheer R/o H. No. V-28, Gali No. 24, Vijay Park, Maujpur, Delhi-110053.
( Car No. DL-4C-AB-8089). ... Respondents Presented on : 01.06.2009 Reserved for judgment : 25.04.2012 Judgment delivered on : 27.04.2012 JUDG MENT
1. By a common judgment, I am disposing of these five petitions as the claims are arising from the same accident involving the same vehicle.
2. The brief facts, as stated by petitioners, are that on 20.02.2009 one Sh. Ashok Kumar, his wife Smt. Anita, his sons Master Chetan and Master Mohit, his daughter namely Amita with some other family members were travelling in car bearing No. DL-4C-AB-8089 and they were returning to Delhi from Rewari and Sh. Ashok Kumar was driving the said car. At about 5.45 a.m. when the car reached near Lal Dhaba and S.R. Petrol Pump, the driver of the truck No. HR-47D-5927, which was ahead of the car, without giving any indication moved the truck to the left side i.e. towards S.R. Petrol Pump and due to which left rear portion of the truck struck against the car and the car was sandwitched under the rear portion of the truck. Sh. Ashok Kumar and master Chetan succumbed to injuries and the other occupants suffered injuries. It is stated that accident took place due to the rash and negligent driving of the respondent No. 1 as the respondent No. 1 was driving the truck at fast speed and moved the truck towards left side in a rash and negligent M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 5/25 manner. An FIR No. 40/09, under section 279/337/338/304-A IPC was registered.
3. The petitioner in petition No. 210/10, put up a claim for Rs. 10,00,000/-( Rs. Ten Lac) for the injuries suffered by her. It is stated that the petitioner was 18 years of age and was the student of 12 th class and had suffered fracture of left Zygomatic arc, left lateral orbital bone and also suffered diffuse axonal injury. It is stated that petitioner was admitted in Max Balaji Hospital on 21.02.2009 and remained there upto 02.03.2009.
4. The petitioners, in petition No. 211/10, put up a claim for Rs. 20,00,000/-( Rs. Twenty Lacs) towards the death of Master Chetan. It is stated that Master Chetan was 15 years of age and was the student of 8 th class.
5. In petition No. 212/10, petitioner put up a claim for sum of Rs. 20,00,000/- towards the injuries suffered by her. It is stated that petitioner was 22 years of age and had suffered injuries in the said accident and was removed to Munjal Hospital by police ambulance. It is stated that petitioner suffered Comp. depressed fracture of frontal bone with right orbital, fracture of left maxillary and communited fracture of Ulna Arti( right wrist). It is stated that the petitioner was admitted in the Max Balaji Hospital on 20.02.2009 and remained till 07.03.2009 and thereafter was again admitted on 13.03.2009 and was discharged on 20.03.2009.
6. The petitioner in petition No. 213/10, put up a claim for Rs. 50,00,000/-( Rs. Fifty Lac) towards the injuries suffered by her, in the accident. It is stated that petitioner was 45 years of age and was a house wife. The petitioner stated that she suffered fracture of roof of left acetabulum, shaft of left ulna besides other injuries. It is stated that petitioner remained admitted in Max Balaji Hospital for over two months.
7. The petitioners, in petition No. 214/10, put up a claim for Rs.
M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 6/251,00,00,000/-( Rs. One Crore) towards the death of Sh. Ashok Kumar. It is stated that the deceased was 48 years of age and was working as the Chargeman (Field) in Indian Oil Corporation and was earning Rs. 30,000/- per month.
8. The respondents No. 1 & 2 did not contest the case and were proceeded ex parte on 20.01.2010.
9. The respondents No. 3 & 5 also did not contest the case and were proceeded ex parte on 29.11.2010.
10. The respondent No. 4/ insurance company filed its written statement admitting that vehicle bearing No. HR-47D-5927 (TRUCK) was insured vide policy No. OG-09-9995-1803-00124641, valid for the period from 03.11.2008 to 02.11.2009 in the name of Sh. Narender Kumar. It is also stated that vehicle bearing No. DL-4CAB-8089( Car) was insured vide policy No. OG-09-1003-1801-00006701, valid for the period from 31.05.2008 to 30.05.2009. It is further stated that the insurance company would not be liable in case the driver was not holding a valid and effective driving licence or if there was breach of terms and conditions of the policy. It is stated that the insurance company was taking all the defences open and available to respondent No. 1 & 2.
11. Based on the pleadings of the parties, the following issues were framed in the petition No. 211/10:-
1. Whether the deceased Sh. Chetan suffered fatal injuries in the accident occurred on 20.02.2009 due to rash and negligent driving of vehicle No. HR-47-
D-5927(Truck) being driven by respondent No. 1?
2. Whether petitioners are entitled for any compensation, if so, to what amount and from whom? OPP M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 7/25
3. Relief.
12. Based on the pleadings of the parties, the following issues were framed in the petition No. 213/10:-
1. Whether the petitioner suffered injuries in the accident occurred on 20.02.2009 due to rash and negligent driving of vehicle No. HR-47-D-5927(Truck) being driven by respondent No. 1?
2. Whether petitioners are entitled for any compensation, if so, to what amount and from whom? OPP
3. Relief.
13. Based on the pleadings of the parties, the following issues were framed in the petition No. 214/10:-
1. Whether the deceased Sh. Ashok Kumar suffered fatal injuries in the accident occurred on 20.02.2009 due to rash and negligent driving of vehicle No. HR-47-
D-5927(Truck) being driven by respondent No. 1?
2. Whether petitioners are entitled for any compensation, if so, to what amount and from whom? OPP
3. Relief.
14. Based on the pleadings of the parties, the following issues were framed in the petition No. 210/10:-
M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 8/251. Whether the petitioner suffered injuries in the accident occurred on 20.02.2009 due to rash and negligent driving of vehicle No. HR-47-D-5927(Truck) being driven by respondent No. 1?
2. Whether petitioners are entitled for any compensation, if so, to what amount and from whom? OPP
3. Relief.
15. Based on the pleadings of the parties, the following issues were framed in the petition No. 212/10:-
1. Whether the petitioner suffered injuries in the accident occurred on 20.02.2009 due to rash and negligent driving of vehicle No. HR-47-D-5927(Truck) being driven by respondent No. 1?
2. Whether petitioners are entitled for any compensation, if so, to what amount and from whom? OPP
3. Relief.
16. All the cases were consolidated on 29.11.2010 for recording common evidence. The petitioners examined Sh. Anil Sarin, Chief Airport Manager, Indian Oil Corporation Ltd. as PW-1, Sh. Mohit ( petitioner in petition No. 210/10) as PW2. On the other hand respondent No. 4 examined Ms. Ramnique Sacher, Senior Executive (Legal), Bajaj Allianz General Insurance Company as R-4W1.
17. I have heard counsels for the parties. Ld. Counsel for Insurance Company contended that the deceased Sh. Ashok Kumar was driving the car, which was behind the truck bearing No. HR-47D-5927 and the deceased hit M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 9/25 the truck from behind, which showed that there was negligence on the part of deceased also as he did not maintain proper distance from the vehicle going ahead of the car. Ld. Counsel for insurance company relied upon the judgment " (i) Raj Rani and others Vs. Oriental Insurance Company Ltd. And others, 2009 ACJ 2003, (SC), (ii) Mrs. Updesh Kaur and others Vs. Jagram and others, III (2004) ACC 106, (iii)Sri Krishna Vishweswar Hegde Vs. General Manager, Karnataka State Road Transport Corporation, 2008 ACJ 1617, (SC), (iv) Renukadevi H Vs. Bangalore Metropolitan Transport Corporation and another, 2008 ACJ 1188 (SC), and Managing Director, Tamil Nadu State Trans. Corpn. Ltd. And another Vs. Amudha Sivaprakasam and others, 21012 ACJ 393. The second contention of Ld. Counsel for Insurance Company is that the truck was being driven without a valid fitness certificate, therefore Insurance Company could not be made liable for compensation. Ld. Counsel for Insurance Company also relied upon the judgments "(i) United India Insurance Co. Ltd. and Ors Vs. G. Kodhainachiar, Tamil Nadu State Consumer Disputes Redressal Commission, Chennai, A. P. No. 539 of 2000, decided on 24.03.2004, (ii) Aeroflot Soviet Airlines Vs. United India Insurance Company Ltd., IV(2006) CPJ 62(NC), National Consumer Disputes Redressal Commission, New Delhi, (iii) Thara Vs. Syamala, M.A.C.A Nos. 2177 of 2005 and 63 of 2009, decided on 09.01.2009.
18. On the other hand, counsel for petitioner contended that the FIR, site plan and testimony of PW-1 clearly indicated that there was negligence on the part of the driver of the truck and there was no negligence on the part of Sh. Ashok Kumar( the deceased).
19. I have gone through the material on record. My findings on the issues are as under :-
Issue No. 1 ( petitions No. 210/10 to 214/10 ) Issues No. 1 of petition No. 210/10 to 214/10 are with regard to the negligence of the driver of vehicle bearing No. HR-47D-5927, therefore M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 10/25 issues No. 1 of petition No. 210/10 to 214/10 are taken together.
20. The testimony of PW2 Sh. Mohit is relevant on this issue. PW2 stated that on 20.02.2009 he alongwith his father and other family members was returning back to Delhi in the car bearing No. DL-43CAB-8089 and the car was being driven by his father at a normal speed on the left side of the road and the truck bearing No. HR-47D-5927 was ahead of the car on the right side of the car and was at fast speed. At about 5.45 a.m. when the car reached near Lal Dhaba and S.R. Petrol Pump, the driver of the truck No. HR-47D-5927, which was ahead of the car, without giving any indication moved the truck on the left side i.e. towards S.R. Petrol Pump and due to which left rear portion of the truck struck against the car and the car was sandwitched under the rear portion of the truck. It is stated that all occupants of the car suffered injuries and were removed to Munjal Hospital at Sidhrawali and Sh. Ashok Kumar and Master Chetan died on account of injuries suffered in accident. It is stated by PW2 that accident occurred due to rash and negligent driving of respondent No. 1 and the police recorded his statement. Sh. Mohit, PW2, during cross-examination, stated that he was sitting on the rear seat of car and he could not tell the exact speed of the truck, which was going ahead and the car had hit the truck from behind.
21. I have gone through the material on record. It is recorded in the FIR that the truck No. HR-47D-5927 was being driven at a fast speed, rashly and negligently and the truck driver moved the truck towards S.R. Petrol Pump side due to which the Honda City car, which was behind the truck hit the truck from behind. The site plan clearly shows that the accident took place because the truck driver moved the truck towards left side. It has already been stated by PW-2 as well as clear from the criminal case record that the driver of the truck did not give any indication before moving to the left side. There is no evidence in rebuttal. Merely because the car was following the truck and hit the truck from behind does not give any inference that the driver of the car was negligent particularly when there is a clearcut, unimpeachable, unrebutted testimony of PW1 that the driver of the truck M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 11/25 moved the truck towards left without giving any indication. Under these facts and circumstances, it cannot be said that the driver of the car was negligent. The judgment relied upon by the counsel for insurance company are not applicable under the facts and circumstances of the present case. In the present matter the truck driver moved the truck towards left side without giving any indication. The person driving his vehicle on left side can not expect that the vehicle being driven at right side will suddenly come in front of his vehicle.
22. The FIR, site-plan, postmortem report, and testimony of PW-2 taken together fully establish the death of Sh. Ashok Kumar and Master Chetan, caused by the injuries sustained by them in the road accident and that Smt. Anita (petitioner No. 1 in petition No. 214/10), Mrs. Amita( petitioner No. 1 in petition No. 212/10) and Master Mohit( petitioner in petition No. 210/10) sustained injuries in the accident involving vehicle bearing No. HR-47D-5927. There is nothing on record to dispel the inference that deceased Sh. Ashok Kumar and Master Chetan died on account of injuries sustained by them in a road accident which occurred on 20.02.2009 and Mrs. Anita, Ms. Amita and Mohit suffered injuries, because of rash and negligent driving of vehicle bearing registration No. HR-47D-5927 being driven by the respondent No. 1. The issue no. 1 of petitions no. 210/10 to 214/10 are decided in favour of petitioners and against the respondents.
Issue No. 2 in M.A.C. Petition No. 210/10 ( Sh. Mohit vs Javed and Ors.)
23. PW2 Mohit stated that after the accident, he was taken to Munjal Hospital, Sidhrawal, Haryana. PW2 stated that he suffered diffuse axonal injury with fracture of left zygomatic arch, fracture left lateral orbital wall and he remained admitted in Max Balaji Hospital from 21.02.2009 to 02.03.2009 and remained outdoor patient for six months. Petitioner stated that he spent Rs.1,50,000/- on medical treatment, Rs. 50,000/- on conveyance, Rs. 40,000/- on special diet, Rs. 30,000/- on attendant and he would have to incur Rs. 30,000/- on future expenses. Petitioner stated that at the time of accident, he was 18 years of age and was a student of 12 th class and due to M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 12/25 that reason he could not continue his study and lost one year. PW2 exhibited the medical record as Ex. PW2/3 and copy of trade certificate as Ex. PW2/4. During cross-examination PW2 stated that expenses towards medical bills had been reimbursed by Indian Oil Corporation and further stated that he was doing ITI course of two years and his first year had completed. PW2 stated that he had no documentary proof to show that he spent Rs. 50,000/- on conveyance, Rs. 20,000/- on special diet, Rs. 30,000/- on attendant and he would have to incur Rs. 30,000/- on future expenses.
24. I have gone through the material on record. The discharge summary issued by Max Balaji Hospital showed that petitioner was admitted on 21.02.2009 and was discharged on 02.03.2009. It is recorded in the discharge summary that petitioner suffered 'Diffuse axonal injury with fracture of left zygomatic arch with fracture of left lateral orbital wall and the condition of the petitioner at the time of discharge was afebrile, conscious, alert and oriented.' Petitioner was the student of 12th class at the time of accident. It can be easily deduced that from material on record that petitioner remained away from study for about 4/5 months and must have required an attendant for 1/2 months. Petitioner also stated that he lost one year of study because of the injuries sustained in the accident but failed to establish the said facts. Under the facts and circumstances, I consider following amount to be the just compensation to the petitioner :
1. Compensation towards pain and sufferings Rs. 60,000/-
2. Compensation towards loss of study for 4-5 months Rs. 25,000/-
3. Compensation towards conveyance and special Rs. 20,000/- diet (without bills)
4. Compensation towards attendant charges @ Rs. Rs. 4000/-
2000/- per month for two months Total Rs. 1,09,000/-
In my opinion a sum of Rs. 1,09,000/- will be the just amount to the petitioner for the injuries suffered in that accident.
M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 13/25Issue No. 2 in M.A.C. Petition No. 211/10 ( Anita vs Javed and ors.)
25. PW-2 stated that in the said accident his brother Master Chetan had also died, who was 15 years of age at the time of accident and was a student of 8th class.
26. I have gone through the material on record. So far as the grant of compensation is concerned, the law is well settled. In R.K. Malik vs Kiran Pal III (2006) ACC261 Hon'ble Delhi High Court held the Second Schedule of the Motor Vehicles Act to be the appropriate method for computing the compensation. With respect to the non-pecuniary damages, the Court observed that loss of dependency of life and pain and suffering on that account, generally speaking is same and uniform, to all regardless of status unless there is a specific case made out for deviation. Hon'ble High Court awarded Rs. 75,000/- towards non-pecuniary compensation. Further Hon'ble Supreme Court in judgment "R.K. Malik vs Kiran Pal, 2009(8) Scale 451" held that the claimants are also entitled to compensation towards future prospects. The Hon'ble Supreme Court held that the claimants are entitled to be compensated towards future prospects and granted further compensation of Rs. 75,000/- towards future prospects of the children.
27. It is discerned from the record that deceased was 15 years of age, therefore notional income of the deceased can be taken as Rs. 15,000/- and applying the second schedule the multiplier of 15 can be taken. Therefore the compensation comes to Rs. 2,25,000/- towards pecuniary damages. The claimants are also entitled to compensation of Rs. 75,000/- towards future prospects and Rs. 75,000/- towards non-pecuniary damages in terms of the judgment passed by Hon'ble High Court in National Insurance Co. Ltd. vs Farzana Ors. The claimants are therefore entitled to total compensation of Rs. 3,75,000/-(Rs. 2,25,000/- + Rs. 75,000/- + Rs. 75,000/-). Thus the total compensation comes to Rs. 3,75,000/-.
M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 14/25Issue No. 2 in M.A.C. Petition No. 212/10 ( Amita vs Javed and ors.)
28. The petitioner did not lead any evidence despite grant of number of opportunities and the counsel for the petitioner closed the petitioner evidence without examining the witness/petitioner. There is no original treatment record. In the absence of any evidence, no amount can be granted to petitioner.
Issue No. 2 in M.A.C. Petition No. 213/10 ( Anita vs Javed and ors.)
29. Sh. Mohit, PW2, deposed that he was the natural guardian of Smt. Anita. Sh. Mohit, PW2, stated that the petitioner suffered injuries and was taken to Munjal Hospital, Shidrawali, Haryana. It is stated that petitioner suffered left temporal contusion with fracture of ulna with fracture of posterior wall of left acetabulum with posterior dislocation of left hip joint and radial nerve palsy (left), post traumatic girdle stone left hip with multiple earlier interventions hip with massive adhesions and she was admitted in Max Balaji Hospital from 20.02.2009 to 20.04.2009, 05.04.2011 to 21.04.2011 and 21.12.2011 to 24.12.2011. It is stated that petitioner was 45 years of age and was a housewife and had incurred sum of Rs. 1,00,000/- on medical treatment, Rs. 50,000/- on conveyance, Rs. 40,000/- on special diet, Rs. 50,000/- on physiotherapy, were spent and petitioner would have to spend Rs. 2,00,000/- towards future expenses as two operations were required. It is stated that due to the injuries suffered petitioner had to engage an attendant and was paying Rs. 5,000/- p.m.
30. I have gone through the material on record. The discharge summary shows that petitioner suffered left temporal contusion with fracture of left ulna with fracture of posterior wall of left acetabulum with posterior dislocation of left hip joint and radial nerve palsy (left). The petitioner was admitted on 20.02.2009 and was discharged on 20.04.2009. Another discharge summary issued by Max Balaji Hospital showed that petitioner was admitted on 05.04.2011 and was discharged on 21.04.2011 and the petitioner M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 15/25 was diagnosed with post traumatic girdle stone left hip with multiple earlier interventions hip with massive adhesions. The third discharge summary is with regard to the problem the petitioner developed in relation to left eye and the same does not relate to the injuries suffered in the accident and hence cannot be taken into consideration.
31. The petitioner is a housewife. The loss of value of services of the petitioner can be taken into consideration. Therefore following the judgment of 'Royal Sundaram Alliance Insurance Company Ltd. Vs. Master Manmeet Singh and others, MAC Appeal No. 590/2011, decided on 30.01.2012", the value of services of deceased are taken as minimum wages plus 15% of minimum wages. The minimum wages on the date of accident were Rs. 3934/-, rounded of to Rs. 4,000/-. The petitioner was 47 years of age, therefore, after adding 15% of the minimum wages, the amount comes to Rs. 4600/-. Under the facts and circumstances it can be easily inferred from the material on record that the petitioner must have remained normal routine work for about 8-10 months and must have required services of an attendant for about 4-5 months. In the given facts and circumstances, I consider the following amount to be just compensation to the petitioner.
1. Compensation towards pain and sufferings Rs. 85,000/-
2. Compensation towards petitioner remaining out of Rs. 46,000/- normal routine work for 10 months @ 4600/- per month
3. Compensation towards attendant charges for 5 Rs. 15,000/- months @ 3000/-p.m.
4. Compensation towards conveyance and special Rs. 10,000/-
diet (without bills)
Total Rs. 1,56,000/-
Therefore, in my opinion the petitioner is entitled to Rs. 1,56,000/- which shall be the just compensation to petitioner.
M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 16/25Issue No. 2 in MAC petition No. 214/10 ( Smt. Anita Vs. Sh. Javed)
32. Sh. Mohit Kumar, PW-2, deposed that his father Sh. Ashok Kumar Sharma was 48 years of age at the time of accident and was working in Indian Oil Corporation (field) and was getting Rs. 30,000/-p.m. and he, PW-2 and other family members were dependent on the deceased. PW2, Sh. Mohit Kumar stated that petitioner No. 2 & 3 were his married sisters and petitioner No. 1 was his mother and petitioner No. 5 & 6 are his grandmother and grandfather. PW2 marked the office card of deceased as Mark Y. During cross examination PW2 stated that his mother was housewife and both the sisters got married after the death of his father.
33. PW1 Sh. Anil Sarin, Chief Airport Manager, Indian Oil Corporation brought the attested copy of comparison between pre-revised and revised salary at the time of death of Sh. Ashok Kumar and exhibited the same as PW1/2. PW1 Sh. Anil Sarin stated that date of superannuation of Sh. Ashok Kumar was 30.09.2021. PW1 exhibited the attested computerized copy of service record of Sh. Ashok Kumar as Ex. PW1/1. During cross examination PW1 Sh. Anil Sarin stated that in the month of January'2009, the deceased Sh. Ashok Kumar had drawn salary of Rs. 23,183/- and Rs. 85,000/- were deducted towards income tax against the salary of 10 months. PW1 stated that exhibit PW1/2 was prepared on the basis of the record maintained in their office.
34. I have gone through the material on record. The exhibit PW1/1 shows that the deceased joined the services on 20.04.1988 and he was the regular employee. PW1/2 shows that the pre-revised salary of deceased was Rs. 23,183/- and the revised salary was Rs.32,800/-. PW1 Sh. Anil Sarin stated that the last drawn salary of deceased was Rs. 23,183/- and in my opinion the last drawn salary can be taken into consideration for calculating the compensation. The deceased was a permanent employee as it is clear from exhibit PW1/2 and that he was lastly promoted on 16.03.2007 and the next pay revision was due on 01.01.2017 and the date of notional retirement M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 17/25 was 30.09.2021. Under these facts and circumstances 30% of the salary is liable to be added towards future prospects. Hence, the salary of the deceased comes to Rs. 30,137/- ( 23,183 + 6954 ). The annual income would be Rs. 3,61,644/-( 30,137 x 12). After deducting the income tax from the annual salary of the deceased, net salary comes to Rs. 3,34,316/- ( 3,61,644 - 27,328).
35. The petitioner No. 2 and 3 were got married later on and were unmarried at the time of accident so they can be taken as dependent of the deceased. Petitioner No. 1 is the wife of the deceased, petitioner No. 4 is son of the deceased, petitioner No. 5 & 6 are the mother and father of the deceased. Since there are five dependents (wife, mother and two unmarried daughters and son of the deceased), 1/4th of the income is liable to be deducted towards personal and living expenses of the deceased. The net income of the deceased comes to Rs. 2,50,737/- (3,34,316 - 83,579). The multiplier applicable would be 13 considering the age of the deceased ( 47 years as per date of birth mentioned in Ex. PW-1/1). The total compensation on account of dependency comes to Rs. 32,59,581/- (2,50,737 x 13).
36. In addition, the claimants will be entitled to a sum of Rs. 25,000/- towards love and affection, Rs. 10,000/- towards loss of estate and Rs. 5,000/- towards funeral expenses. The petitioner No. 1 being the wife of the deceased is also entitled to a sum of Rs. 10,000/- on account of loss of consortium. Thus, the total compensation will be Rs. 33,09,581 /-( 32,59,581 + 50,000).
LIABILITY
37. The insurance company/respondent No. 3 examined Ms. Ramnique Sacher, Sr. Executive (Legal) as R-4W1. Ms. Ramnique Sacher, R4W1, deposed that their office had sent a notice to the owner of the truck bearing No. HR-47D-5927 through their counsel Sh. M.P. Shahi for production of original insurance policy, RC and fitness certificate. R-4W-1 exhibited the M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 18/25 copy of the notice as R4W1/1. R-4W1 stated that their office had also sent notice to Sh. Harish Sharma( respondent No. 3) as well as to Sh. Mohd. Azar for production of original insurance policy and the registration certificate of vehicle bearing No. DL-4-CAB-8089. The R4W1 Ms. Ramnique Sacher, exhibited the copy of notice as R4W1/2 postal receipts as R4W1/3 to 5 and AD card R4W1/6 and copy of the policy as R4W1/7 and the copy of the policy of car no. DL 4CAB 8089 as R4W1/8. Ms. Ramnique Sacher, R4W1, deposed that owner of the truck had not supplied the original insurance policy, RC and fitness. It is stated that the fitness was not covering the date of accident, hence insurance company was not liable to make the payment.
38. I have gone through the material on record. The notice Ex. R4W1/1 was sent to the owner of the vehicle i.e. truck bearing No. HR-47D- 5927 and the registry slips are also on record and shows that notice was correctly addressed therefore deemed to have been served. The respondent no. 1 & 2 did not provide the copy of fitness certificate covering the date of accident therefore adverse inference can be drawn that the vehicle No. HR-47D-5927 was being plied without valid and effective fitness certificate. Therefore, no liability can be fastened on insurance company. The judgment "
Divisional Manager, United India Insurance Company Ltd. V/s. S. Shaukat Ali & Ors,2010 ACJ 1726, clearly covers the issue.
39. Since the respondent No. 4 has admitted the policy, the respondent No. 4 shall initially satisfy the award. The respondent No. 4 shall be entitled to recover the awarded amount from respondent No. 2.
Issue No. 3 (Relief )
40. While granting the relief to petitioners in all the cases, I am also to M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 19/25 award the interest @ 7.5% p.a on the amount awarded to petitioners from the date of filing of petitions till realization of the amount. Issue No. 3 is answered accordingly.
Relief in M.A.C. Petition No. 210/10:-
41. In view of the above, I am directing to the respondent No. 4, the insurance company, to pay to the claimants a sum of Rs. 1,09,000/- towards compensation within one month. The respondent No. 4, insurance company shall also pay interest @ 7.5% p.a. on the total compensation amount from the date of petition till realization to the petitioner. The respondent No. 4 shall have right to recover the said amount from the respondent No. 2.
42. For the aforesaid reasons, I pass the following award :-
AWARD IN M.A.C. Petition No. 210/10:-
In view of the above the petition is allowed. The respondent No. 2 is liable to pay the compensation of Rs. 1,09,000/-. However, the respondent No. 4 having admitted the policy, is hereby directed to pay a compensation of Rs. 1,09,000/-, within one month. The respondent No. 4 shall also pay interest @ 7.5% p.a. (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioner.
The respondent No. 4 shall be entitled to recover the awarded amount from the respondent No. 2.
43. The award amount shall be deposited by respondent No. 4 within 30 days from today, in the court.
44. 25% of the amount awarded to petitioner shall be kept in FDR for a period of two years and rest of the amount be released to petitioner.
Relief in M.A.C. Petition No. 211/10:-
M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 20/2545. In view of the above, I am directing to the respondent No. 4, the insurance company, to pay to the claimants a sum of Rs. 3,75,000/- towards compensation within one month. The respondent No. 4, insurance company shall also pay interest @ 7.5% p.a. on the total compensation amount from the date of petition till realization to the petitioners. The respondent No. 4 shall have right to recover the said amount from the respondent No. 2.
46. For the aforesaid reasons, I pass the following award :-
AWARD IN M.A.C. Petition No. 211/10:-
In view of the above the petition is allowed. The respondent No. 2 is liable to pay the compensation of Rs. 3,75,000/-. However, the respondent No. 4 having admitted the policy, is hereby directed to pay a compensation of Rs. 3,75,000/-, within one month. The respondent No. 4 shall also pay interest @ 7.5% p.a. (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioner.
The respondent No. 4 shall be entitled to recover the awarded amount from the respondent No. 2.
47. The award amount shall be deposited by respondent No. 4 within 30 days from today, in the court.
48. 50% of the amount awarded to petitioner shall be kept in FDR for a period of two years and rest of the amount be released to petitioner.
Relief in M.A.C. Petition No. 212/10:-
49. Since the petitioner did not lead any evidence despite grant of number of opportunities and the counsel for the petitioner closed the petitioner evidence without examining the witness/petitioner. There is no original treatment record. In the absence of any evidence, no amount can be granted to petitioner.
M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 21/2550. For the aforesaid reasons, I pass the following award :-
AWARD IN M.A.C. Petition No. 212/10:-
The present petition is dismissed .
Relief in M.A.C. Petition No. 213/10:-
51. In view of the above, I am directing to the respondent No. 4, the insurance company, to pay to the claimants a sum of Rs. 1,56,000/- towards compensation within one month. The respondent No. 4, insurance company shall also pay interest @ 7.5% p.a. on the total compensation amount from the date of petition till realization to the petitioners. The respondent No. 4 shall have right to recover the said amount from the respondent No. 2.
52. For the aforesaid reasons, I pass the following award :-
AWARD IN M.A.C. Petition No. 213/10:-
In view of the above the petition is allowed. The respondent No. 2 is liable to pay the compensation of Rs. 1,56,000/-. However, the respondent No. 4 having admitted the policy, is hereby directed to pay a compensation of Rs. 1,56,000/-, within one month. The respondent No. 4 shall also pay interest @ 7.5% p.a. (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioner.
The respondent No. 4 shall be entitled to recover the awarded amount from the respondent No. 2.
53. The award amount shall be deposited by respondent No. 4 within 30 days from today, in the court.
54. 25% of the amount awarded to petitioner shall be kept in FDR for a period of two years and rest of the amount be released to petitioner.
Relief in M.A.C. Petition No. 214/10:-
M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 22/2555. In view of the above, I am directing to the respondent No. 4, the insurance company, to pay to the claimants a sum of Rs. 33,09,581/- towards compensation within one month. The respondent No. 4, insurance company shall also pay interest @ 7.5% p.a. on the total compensation amount from the date of petition till realization to the petitioners. The respondent No. 4 shall have right to recover the said amount from the respondent No. 2.
56. For the aforesaid reasons, I pass the following award :-
AWARD IN M.A.C. Petition No. 214/10:-
In view of the above the petition is allowed. The respondent No. 2 is liable to pay the compensation of Rs. 33,09,581/-. However, the respondent No. 4 having admitted the policy, is hereby directed to pay a compensation of Rs. 33,09,581/-, within one month. The respondent No. 4 shall also pay interest @ 7.5% p.a. (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioner.
The respondent No. 4 shall be entitled to recover the awarded amount from the respondent No. 2. The claimants are entitled to the compensation in the following proportions along with corresponding interest :-
(a) Petitioner No. 1 shall get Rs. 16,54,790/- along with corresponding interest.
(b) Petitioner No. 2 shall get Rs. 2,15,479/- along with corresponding interest.
(c) Petitioner No. 3 shall get Rs. 2,15,479/- along with corresponding interest.
(d) Petitioner No. 4 shall get Rs. 6,61,916/- along with corresponding interest.
(e) Petitioner No. 5 shall get Rs. 4,96,437/- along with corresponding interest.
(f) Petitioner No. 6 shall get Rs. 65,479/- along with corresponding interest.
57. The award amount along with interest be deposited by insurance M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 23/25 company with UCO Bank, Nodal Officer through Nodal Officer, Karkardooma Branch, within 30 days in the petitioners' accounts.
58. Upon the aforesaid amount being deposited, the UCO Bank is directed to keep the amount awarded to petitioners in fixed deposit in the following manner:-
Petitioner No. 1Fixed deposit of Rs. 2,00,000/-( each) for a period of two year, four year, six years, eight years, ten years, twelve years. Rest of the amount shall be released to the petitioner No. 1 with immediate effect by transferring the same to her saving bank account.Petitioner No. 4
Fixed deposit of Rs. 1,00,000/-( each) for a period of two year, four year, six years and eight years. Rest of the amount shall be released to the petitioner No. 4 with immediate effect by transferring the same to his saving bank account.Petitioner No. 5
Fixed deposit of Rs. 1,00,000/-( each) for a period of two year, four year and six years. Rest of the amount shall be released to the petitioner No. 5 with immediate effect by transferring the same to her saving bank account.
59. The interest on the aforesaid FDR shall be paid monthly by automatic credit of interest in the savings account of petitioners.
60. Withdrawal from the aforesaid account shall be permitted to the petitioner after due verification and the bank shall issue photo identity card of petitioner to facilitate identity.
61. No cheque book be issued to the petitioners without the permission of the court.
M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 24/2562. 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 appellant along with photocopy of the FDRs.
63. The original fixed deposit receipts shall be handed over to the petitioner on the expiry of the period of the FDRs.
64. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of the court.
65. Half yearly statement of account be filed by the bank in the court.
66. On the request of the petitioner, the bank shall transfer the saving account to any other branch of UCO bank according to the convenience of the petitioners.
67. The petitioners shall furnish all the relevant documents for opening of the saving bank account and fixed deposit account to Nodal Officer, UCO Bank, Karkardooma Court, Delhi.
68. Original judgment be kept in M.A.C. Petition No. 211/10 and a copy in other files. A copy of the award be given free of cost to the parties concerned. List for reporting compliance on 05.07.2012 Announced in the (Arvind Kumar) open court on 27.04.2012 Presiding Officer:MACT Karkardooma Court Delhi M.A.C. Petition No: 210/10, 211/10, 212/10, 213/10 Page No. 25/25