Delhi District Court
Amrita Singh Widow /O Sh.Ravinder Singh vs Sh.Narinder Singh on 30 April, 2009
1
IN THE COURT OF SHRI GURVINDER PAL SINGH
JUDGE,MOTOR ACCIDENT CLAIMS TRIBUNAL(WEST)
TIS HAZARI COURTS,DELHI
Suit No. 491/08
1. Amrita Singh widow /o Sh.Ravinder Singh
2. Deepshikha Singh d/o Sh. Ravinder Singh
3. Kritika Singh(minor daughter) of Sh.Ravinder Singh
4. Sohail Singh(minor son) of Sh. Ravinder Singh
All r/o H. No. 160, Pragati Apartments,
Paschim Vihar, New Delhi.
......Petitioners
Versus
1. Sh.Narinder Singh
r/o Nuna Majra, Dist. Jhajar,
Haryana (Owner)
2. United India Insurance Co. Ltd.
8/130, Dharampura, Delhi Rohtak Road,
Bahadurgarh.((Insurer)
3. Anil Kumar s/o Sh. Munshiram
r/oVillage-Khachroli, P.S. Salawas,
Distt. Jhajhar, Haryana. (Driver)
.....Respondents
Date of filing of the petition : 08/04/05 When reserved for judgment : 17/04/09 Date of final award : 30/04/09 AWARD
Petitioners have claimed Rs. 20,00,000/- as compensation vide claim petition u/s 166 & 140 of the Motor Vehicles Act, 1988, for fatal injuries caused to Sh. Ravinder Singh on 20/09/04 at about 10:20 p.m near 2 Maya Puri Flyover within the area of P.S. Kirti Nagar while travelling in Maruti Van No. DL-IV-8124, when he was hit by truck No. HR-46-B-1968, resulting in the Maruti Van colliding against the mid verge, the front wind screen glass of the van broke, by force of collision, the deceased was thrown out of the front window, fell down on the road and was run over by several vehicles coming on the said busy road whereby his head and face were crushed and he died at the spot.
2. Summons were issued to the respondents. Despite opportunities, respondent No.1,owner of the offending vehicle did not file any written statement and was proceeded exparte by my Ld. Predecessor on 07/09/05.
3. Respondent No.2, insurer filed the written statement, denying the claim of the petitioner but admitted the fact that vehicle bearing registration No. HR-46 B 1968 was insured with it vide Policy No. 111205/31/03/02676 valid from 1.11.2003 to 31.10.2004.
4. Sh. Anil Kumar, the driver was impleaded as respondent No. 3 in terms of order dated 24/03/08 by my Ld. Predecessor. That day, said respondent was present in the court, his presence was recorded in the order sheet. Vide order dated 04/04/08 for non-appearance, respondent No. 3 was 3 proceeded exparte by my Ld. Predecessor and he did not file the written statement.
5. Vide order dated 26/09/05, interim award of Rs. 50,000/- was passed in favour of the petitioners but in terms of order dated 15/09/06, passed in the Execution No. 19/06 preferred by petitioners, it was not pressed till final decision, in terms of statement of Ld. Counsel for the petitioner given before my Ld. Predecessor. Following issues were also framed on 26/09/05 by this Tribunal.
1. Whether the deceased Ravinder Singh suffered fatal injuries on 20.09.04 due to rash and negligent driving of truck No. HR-46 B 1968 by its driver?
2. To what amount of compensation, the L. Rs of deceased Ravinder Singh are entitled and from whom?
3. Relief.
6. Petitioner examined three witnesses in petitioner's evidence namely PW-1 i.e. Petitioner No.1 herself, PW-2 Sh. Desh Raj, Record Clerk from DDU Hospital and Sh. Virender Kumar, the eye witness of the accident.
7. SI Arvind Verma, Investigating Officer of case FIR No. 464/04, 4 P.S. Kirti Nagar was also examined as court witness, CW-1 by my Ld. Predecessor on 02.04.07 and 04.04.08.
8. No respondent evidence was led despite opportunities.
9. Ld. Counsel for the petitioner has relied upon the cases of (1) New India Assurance Co. Limited Vs. G. Vijaya Kandiban & Anr, reported in 2007 ACJ 2824; (2) Prakashwati & ors Vs. DTC & Anr, reported in 2005 ACJ 1017; (3) Bhimavva & ors Vs. Shankar & Ors, reported in 2005 ACJ 301; (4)NIC vs. Gurbachan Singh & Ors, reported in 2008, ACJ 979; (5) Gill Sandhu Transport Co. & Anr Vs. Ram Piari & Ors, reported in 2007 ACJ 2725; (6) United India Insurance Co. Ltd Vs. Parpudi Krishna Kumar & Ors, reported in 2004 ACJ 624;(7) North East Karnataka Road Tpt Corporation Vs. M Nagangouda AIR 2007 SC 973 & (8) NIC Vs. Subhashini Perumal & Ors 2005 ACJ 61, praying for grant of claimed compensation.
10. I have heard submissions of Ld. Counsels for the parties, perused the record and given my thoughts to the contentions put forth. My issue-wise findings are as under:-
5
ISSUE NO.1
11. PW-3 Sh. Virender deposed that on 20/09/04 at about 10/10:15 p.m, he was going from ITO to Najafgarh on his two wheeler scooter bearing No. 7872. When he turned towards Ring Road at Naraina, he saw a truck bearing No. HR-46B-1968 coming behind him at a very fast speed. The said truck passed over him and hit a Maruti Van. Said truck was being driven rashly and negligently and as per PW-3 the accident took place due to rash and negligent driving of the truck driver. PW-3 further stated that he informed the police when he had gone himself to Police Station next day. He stated that he on asking the police official had given truck number which he had noted down in a small pocket diary, at point 'A' in Ex. PW3/1. He elicited that he had chased the truck after the accident but had not come back to the deceased and was not aware whether the person who met with an accident died or was injured only. He clarified that he tried to chase the truck but it was going on a very fast speed so he could only note down the number of the truck, while he was getting late and it was night time of about 10/ 10:15 pm , hence he could not inform the police at that time.
12. He candidly admitted that since he had not seen the truck driver but had only seen the truck and its number, so he could not identify the 6 truck driver in the organised Test Identification Parade by the Investigating Agency.
13. Ld. Counsel for Insurance Company contended that PW-3 was an introduced witness as his name did not find mention initially as an eye witness in the closure report prepared by the Investigating Agency as 'untraced'.
14. CW-1 SI Arvind Kumar deposed that he was the second Investigating Officer of the case and one Sh. Jagdeep Singh Gahlaut addressed to the SHO,communication dated 11/02/05,Ex. CW1/R3/1 about the involvement of vehicle No. HR-46B-1968. On receipt of the said communication, the case was reopened by the predecessor of Investigating Officer,CW-1.
15. It had been held in the case of G. Vijaya Kandiban (supra) that the statement recorded in the FIR cannot be raised to pedestal higher than that of a statement on oath, since FIR is never lodged on solemn affirmation while the statements before Tribunal are made on solemn affirmation. Also is settled law that FIR is not to be an encyclopedia of entire sequence of facts in commission of the offences. It may or may not 7 contain the entire set of facts leading to the commission of crimes. To set the Investigation Agency in motion the facts necessary to constitute commission of cognizable offence may only suffice for registration of the first information report, but the absence of some facts in the FIR would in no way in itself be sufficient for discarding sworn statements of eye witness(es) and /or dismissal of claim petition(s).
16. In the case of of Prakashwati & Ors (supra), it was held that when the FIR did not contain the number of vehicle, the driver of the bus denying the accident taking place, the finding of the Tribunal that the accident was caused by the bus in question was upheld.
17. In the case of Bhimavva & Ors (supra) it was held that FIR is not substantive evidence in itself. It can at best be made use for the purpose of corroborating or contradicting the person who has lodged the same.
18. In the case of Gurbachan Singh (supra), it was held that even mentioning of wrong number of the offending vehicle in FIR would not in itself be sufficient for rejection of the claim of the claimant for compensation before the Tribunal.
8
19. In the case of Gill Sandhu Transport Co.(supra), it was held that where the defendants denied the occurrence of accident and stated that accident was not proved in the absence of FIR, on the basis of the evidence before the Tribunal, the finding of the Tribunal that the driver of the offending vehicle was rash and negligent in causing the accident was upheld.
20. Non- recording of the statement of PW-3 by the officials of the Investigating Agency on the date of accident or next day thereof or delay in recording of his statement or his failure to identify the driver of the offending vehicle in organised Test Identification Parade, in view of the elicited law embodied in the pronouncements herein before stated, cannot be termed to be fatal to the claim of the present petitioners. When read as a whole, I find testimony of PW-3 to be natural, cogent and trustworthy. He has even produced his small pocket diary annexed in record where at point 'A' in Ex. PW3/1, he has noted down the truck number. The version contained in his statement elicited herein before inspires confidence and appears to be probable. Beside this, despite opportunities, the driver of the offending vehicle has not stepped into the witness box to say anything in contrary to the version of PW-3, attributing the rashness and negligence to 9 the driver of the offending vehicle causing accident and being responsible for the death of the deceased. Bare perusal of the certified copy of the post mortem report of deceased, Ex. PW2/1 reveals that it was opined by the doctor conducting the post mortem that the death of deceased was instant due to multiple trauma over the body and the post mortem report leaves no doubt that the deceased died on account of the injuries sustained in the accident.
21. In view of above discussion, issue No.1 is decided accordingly in favour of the petitioners and against the respondents. ISSUE NO. 2
22. The appropriate method of calculating the compensation in fatal cases is multiplier method. In catena of decisions, the Hon'ble Supreme Court of India had held that in India the multiplier method is appropriate for calculation of compensation. It was so enunciated by their Lordship Wright in "Davies Vs. Powell Duffregn Associated Collieries Ltd"
reported in 1942 AC601, that the appropriate method to calculate compensation is the multiplier method. In the cases of 'General Manager , Kerela State Road Transport Corporation, Trivendram Vs Susamma Thomas (Mrs.) & Ors', (1994) 2 SCC 176; ( 2 ) 'Managing Director, TNSTC Ltd. Vs K.I. Bindu & Ors'. (2005) 8SCC 473; (3) 'Gobald 10 Motor Service Ltd. & Anr Vs RMK Veluswami & Ors', AIR 1962 SC 1 and of late, in the case of 'Syed Basheer Ahamad & Ors. V Mohd Jameel and Anr'. in Civil Appeal No. 10 of 2009, decided by the Division Bench of the Hon'ble Supreme Court on 06/01/2009, also in the case of ' Smt. Sarla Verma & ors Vs. Delhi Transport Corporation in Civil Appeal No. 3483 of 2008 decided by th Division Bench of the Hon'ble Supreme Court on 15/04/09, the payment of compensation in lump-sum to legal representatives of deceased by multiplier method has been approved.
THE MULTIPLICAND
23. PW-1, deposed that her deceased husband was running a business in the name and style of M/s Needle Fashion which was a partnership business, partnership deed is Ex. PW1/R2/1. She also proved the income tax return of assessment year 2003-2004, Ex. PW1/4 of her husband showing the business income of Rs. 36,000/- that year and the agricultural income of Rs. 55,000/- that year. During the course of her cross-examination, the attested copy of the judgment, Ex. PW1/R2/2 has been brought on record which reflects of it being of the court of Sh. Gulab Singh, Civil Judge,(Senior Division), Jhajjar, passed in Civil Suit no.4/05 on 24/05/06 in terms of which the petitioner being the natural mother and guardian of her minor son Sohail Singh had preferred the petition u/s 8 of 11 the Hindu Minority and Guardianship Act 1956 therein and was granted the permission to sell the land comprised in Khewat No. 44 Khata No. 58 detailed therein measuring 94 Kanal 4 marlas situated within the revenue estate of village Kherka Musalmanan, Tehsil Bahadurgarh Dist. Jhajjar. Also mentioned therein is that petitioner Smt. Amrita had no other source of income except the meager income from the land and she had to sell the land to provide better education to her son which land was owned and possessed by her minor son Sohail.
24. During her cross-examination, PW-1 deposed of working as a Teacher for last about 10 years in Delhi Public School, being posted at Rohini for last about 5 years, as on 02/04/07. Either of her versions viz, having no source of income, as mentioned in the referred judgment Ex. PW1/R2/2 or as deposed in this court of being the teacher for last 10 years may be correct and not both. Be that as it may, I confine myself to assess just compensation as is required to be awarded by this Tribunal. Also is stated in her cross-examination by PW-1 that agricultural income of her deceased husband was on account of his leasing the land to others. It is apparent on record that the deceased was not cultivating the land himself but was obtaining the agricultural income on account of his leasing the land to others.
12
25. In the case of North East Karnataka Road Transport Corporation (Supra) relied by the petitioner counsel, the question in said case was whether the gainful employment also included self employment where from agricultural income was generated , in context of the Industrial Disputes Act. So for arriving at what would be just compensation in this claim, said precedent is of no help to the petitioner.
26. In the case of P. Subhashini Perumal & Ors (supra) relied by the petitioner counsel it was there that income from land which the family of the deceased may get by leasing the land had to be taken into consideration while computing loss of dependency. But for said computation , the claimants have to prove what the family of the deceased, can get by way of agricultural income, by leasing the property and said amount is to be reduced from the agricultural income of the deceased, as alleged. Herein, it has not been made clear as to what quantum of the agricultural income can yet be generated by the family of the deceased after the expiry of deceased but only on record is the above referred judgment Ex. PW1R2/2 in terms of which as on 24/05/06, the petitioner had obtained the permission to sell the said agricultural land. Whether or not the land has actually been sold, has also not been made clear. There is merely bald assertion of petitioner 13 PW-1 that she has not been able to lease out the agricultural land after the death of the deceased. No where she has on her own specified as to what the agricultural income could have been or was possible to be generated by leasing out the said agricultural land after the death of the deceased. She only produced the copy of the said judgment at the asking of the Ld. Counsel for respondent No.2 for which her cross-examination was deferred on 02/04/07 and which further took place on 19/05/07 before my Ld. Predecessor. She has only made clear that her husband was obtaining the agricultural income by leasing his agricultural land to others. After the demise of the deceased, the agriculture land was available to the claimants / petitioners for leasing out to others and for obtaining the agricultural income, as was being so done by the deceased during his life time. In terms of the aforesaid, the relied precedent of P. Subhashini Perumal 's case (supra) is also of no help to the petitioner.
DEPENDENCY
27. The loss of dependency of the petitioner is in terms of the loss of business income of the deceased amounting to Rs. 36,000/- per annum i.e his monthly income is accordingly Rs. 3000/-, in terms of the income tax return of assessment year 2003-2004, Ex. PW1/4.
28. In terms of law laid by the Apex Court in the case of Smt. Sarla 14 Verma (supra), the deceased being married and petitioners being his widow, two daughters and a son , family members being four in number, the deduction for personal and living expenses of the deceased would be 1/4th of the income of the petitioner. Accordingly, from the monthly income of the deceased i.e from Rs.3000/- , 1/4th i.e, Rs. 750/- is to be deducted for personal and living expenses of the deceased. The balance i.e. Rs. 2250/- (Rs. 3000/- - Rs. 750/-) is assessed as monthly contribution of the deceased to the dependent family. The annual loss of the dependency would accordingly be Rs. 27,000/- (2250X 12).
THE MULTIPLIER
29. In the post mortem report, the age of the deceased is mentioned as 50 years. In the School Certificate, Ex. PW1/2, the date of birth of deceased is mentioned as 10/06/1956. So is his date of birth mentioned in the driving licence of the deceased, Ex. PW1/5. In terms thereof, the deceased was aged 48 years 3 months plus as on the date of accident.
30. As per Ration Card Ex. PW1/1, the age of the widow of the deceased PW-1, petitioner No.1 is 41 years. In terms of the said Ration Card the ages of petitioner no.2 , 3 & 4 are 20 years, 14 ½ years and 11 ½ years respectively, as on the day of accident.
15
31. In terms of law laid by the Apex Court in Smt. Sarla Verma (supra) for the deceased of the age group of 46 to 50 years, the multiplier of 13 is to be applied. In terms of said law laid, the multiplier of 13 is to be applied in this case also.
COMPENSTION FOR LOSS OF ESTATE
32. In terms of law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra), the claimants are entitled to sum of Rs. 5000/- under the head of loss of estate.
COMPENSATION TOWARDS FUNERAL EXPENSES
33. In terms of law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra), the claimants are entitled to sum of Rs. 5000/- towards funeral expenses.
COMPENSATION FOR LOSS OF CONSORTIUM
34. In view of the law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra) the widow of the deceased, petitioner No.1 is entitled to Rs. 10,000/- as loss of consortium.
35. In view of the above discussion, the total compensation to which the petitioners are entitled to comes as under:-
1. Compensation for Loss of dependency ( Rs.2250/- X 12X13) Rs. 3,51,000/-
2. Compensation for loss of estate Rs. 5000/-
3. Compensation for funeral expenses Rs. 5000/- 16
4. Compensation for loss of consortium Rs. 10,000/-
_____________ Rs. 3,71,000/-
______________
36. In view of the above discussions, issues No.2 is decided in favour of the petitioners and against the respondents. Petitioners are thus, entitled to Rs. 3,71,000/- ,as compensation alongwith interest 7.5% per annum from the date of filing of the petition till its realization from the respondents.
Relief
37. In view of the aforesaid discussions, it is hereby held that petitioners are entitled to a sum of Rs. 3,71,000/- alongwith interest @ 7.5% per annum from the date of filing of the present petition till its realization from the respondents, payable by the United India Insurance Co. Ltd/ respondent No.2.
APPORTIONMENT OF COMPENSATION
1. Smt. Amrita Singh (wife) Rs. 1,91,000/-
2. Ms.Deepshikha (daughter) Rs. 60,000/-
3. Ms.Kritika Singh( minor daughter) Rs. 60,000/-
4. Sohail Singh (minor son) Rs. 60,000/-
38. Since the amount awarded should not be frittered away by beneficiaries owing to the ignorance, illiteracy etc., the Hon'ble Supreme 17 Court of India in a case titled 'G. M. Kerala State Road Transport Corporation Vs. Susamma Thomas' reported in 1994(2) SCC 176, has laid guidelines pronouncing that in a case of compensation for death, it is appropriate that Tribunals do keep in mind the principles enunciated by this court in Union Carbide Corporation Vs. 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. Guidelines inter alia included of investment of share of the claimants in FDRs in nationalized banks with conditions that bank will not permit any loan or advance on the fixed deposits and interest on the amount invested is paid monthly / periodically directly to the claimant and such investment may be made in more than one fixed deposit. In case of any exigency, claimants are at liberty to apply to Tribunal for withdrawal of such investment.
39. In terms thereof, 50% amount of claimants Smt Amrita Singh and Ms. Deepshikha, out of the award sum be invested in shape of two FDRs of equal (almost)share in the name of the said claimants / petitioners for a period of five years in a Nationalized Bank. Share of minor petitioners No. 3 Ms.Kritika Singh & petitioner No.4 Master Sohail be invested in the shape of FDRs in the name of the claimants/petitioners till they attain the 18 age of 21 years. The FDR shall have no facility of loan or advance. Petitioners can withdraw the interest monthly/quarterly. However, petitioners are at liberty to take steps for premature encashment in case of exigency, as per law laid before this Tribunal. Respondent No.2 i.e the United India Insurance Company Limited is directed to deposit the cheques in the names of the petitioners within 30 days.
Announced in open court (Gurvinder Pal Singh)
today i.e. 30/04/09 Judge, MACT(West)
Delhi.