Delhi District Court
Avinash & Anr. vs . Sahadev Singh & Ors. on 4 March, 2017
IN THE COURT OF MS. MADHU JAIN, PRESIDING OFFICER: MOTOR
ACCIDENT CLAIMS TRIBUNAL: SOUTH EAST DISTRICT/SAKET
COURTS COMPLEX/NEW DELHI
MACT No. 4795/16
FIR No. 496/16
Police Station Lajpat Nagar
Avinash & Anr. Vs. Sahadev Singh & Ors.
Fatal Case
1. Shri Avinash Goel S/o Shri H R Dass (Father of deceased)
2. Smt. Sudha Goel W/o Shri Avinash Goel (Mother of deceased)
Both R/oH. No. 341/1, D6, Rohini, Delhi110085.
.............Petitioners/claimants
Verses
1. Shri Sahadev Singh S/o Shri Gaje Singh (Driver),
R/o Village Tikri, PS Doghat, District Baghpat,
Uttar Pradesh.
2. Shri Amit Chaudhary S/o Shri Nand Kishor (Owner),
R/o 325/5, Subhash Nagar, Meeurt, Uttar Pradesh.
3. The New India Assurance Co. Ltd. (Insurer),
Delhi Central Legal Hub (820000),
Jeevan Raksha Building, 12/1, Asaf Ali Road,
New Delhi110002.
......................Respondents
Date of Institution : 12.08.2016
Date of reserving judgment/order : 04.03.2017
Date of Pronouncement : 04.03.2017
JUDGMENT:
1. Present claim proceedings were initiated on the basis of Detailed Accident Report (DAR) filed by police on 12.08.2016 in respect of fatal injuries MACT No. 4795/16 Avinash & Anr. Vs. Sahadev Singh & Ors. Page No. 1/ 16 suffered by deceased namely Amit Goel (hereinafter referred to as deceased) in a road accident.
2. In the present case, petitioners are parents of deceased.
3. Brief facts of the case are that on 25.07.2016 at about 10.00 AM, deceased was driving his motorcycle bearing registration No. DL4SCD5396. When he reached in the middle of Defence Colony Flyover, Lajpat Nagar, New Delhi, offending bus bearing registration No. UP15BT9457, being driven by respondent No. 1 in a rash and negligent manner, came from Nizamuddin side and hit motorcycle of deceased from behind with high speed due to which deceased fell down on road. Respondent No. 1 ran over the offending bus over the deceased. After the accident, deceased was taken to JPNA Trauma Centre, AIIMS, New Delhi in a cardiac arrest state. Doctors tried to revive deceased, but he could not survive and doctors declared him dead on the date of accident itself.
4. FIR No. 496/16 under Section 279/304A IPC, Police StationLajpat Nagar was registered. Police during investigation prepared site plan of place of occurrence of accident, collected MLC and postmortem report of deceased, seized both vehicles involved in the accident and got them mechanically inspected, gave notice under Section 133 of Motor Vehicle Act to owner of offending bus, seized driving licence of respondent No. 1 and arrested him. After due investigation, police found respondent No. 1 accused of rash and negligent driving and chargesheeted him for commission of offence punishable under Section 279/304A IPC.
5. During proceedings, respondent No. 1 and 2 did not file any written statement MACT No. 4795/16 Avinash & Anr. Vs. Sahadev Singh & Ors. Page No. 2/ 16 and their opportunity to file written statement was closed vide order dated 20.10.2016.
6. During proceedings, respondent No. 3 filed its replycumlegal offer in the sum of Rs.22,76,760/ subject to deduction of Personal Accidental Policy amount for settling the claim of petitioners while admitting that bus bearing registration No. UP15BT9457 was insured with answering respondent on the date of accident vide policy No. 32110131150100004294 in the name of Amit Chaudhary.
7. From pleadings following issues were framed on 20.10.2016 :
1. Whether the deceased received fatal injuries in the accident which took place on 25.07.2016 at about 10.00 hrs involving offending vehicle i.e. Bus bearing No. UP15BT9457 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 No. 2/Smt Sudha Goel, mother of deceased examined herself as PW1. She tendered her affidavit of evidence as Ex. PW1/A and relied upon certain documents i.e. copy of her Aadhar Card and Election ICard are collectively Ex. PW1/1; copy of Election ICard of petitioner No. 1/ father of deceased is Ex. PW1/2; copies of Election ICard, driving licence, PAN Card and Aadhar Card of deceased is collectively Ex. PW1/3; Death Certificate of deceased is Ex. PW1/4; copies of educational MACT No. 4795/16 Avinash & Anr. Vs. Sahadev Singh & Ors. Page No. 3/ 16 qualification documents of deceased are collectively Ex. PW1/5; copy of letter dated 23.10.2008 issued by Central Electronics Ltd. in favour deceased is Ex. PW1/6; copy of appointment letter dated 14.06.2013 issued by Trivitron Health Care alongwith offer of employment, pay and allowances, confirmation of services are collectively Ex. PW1/7; copy of appointment letter dated 02.05.2015 issued from BPL Medial alongwith other documents are collectively Ex. PW1/8, pay slips of deceased w.e.f. January, 2016 to July, 2016 are collectively Ex. PW1/9 and Detailed Accident Report is Ex. PW 1/10. She has also relied upon Form 16 of deceased for the assessment year 201617 as Mark A; Form 16 for the assessment year 201516 as Mark B and copy of Form 12BA for assessment year 201516 as Mark C.
9. During evidence, petitioners have also got examined PW2 Shri P Mohanan, Manager Administration of BPL Medical Tech. Pvt. Ltd. where deceased was working before his fatal accident. PW2 has proved employment record of deceased.
10. No other witness was examined by any of the party.
11. After hearing the arguments and considering the material on record, my issue wise findings are as follows :
Issue No. 1 (Negligence):
12. Though no eyewitness to the accident was examined by the petitioners.
However, counsel for petitioners has relied upon the statement of eyewitness/ complainant HC Jagjit Singh on the basis of which FIR was registered. Perusal of DAR shows that eyewitness HC Jagjit Singh gave his statement to police that on 25.07.2016, HC Jagjit Singh was deputed as Head Constable at MACT No. 4795/16 Avinash & Anr. Vs. Sahadev Singh & Ors. Page No. 4/ 16 PS Lajpat Nagar and was on patrolling duty. While patrolling, when he reached on Defence Colony Flyover, he saw that one road was closed due to maintenance work. Traffic of both sides was passing through one road only due to which there was traffic jam on the road. HC Jagjit Singh helped in smooth running of traffic on Flyover and traffic jam become normal. At about 10.00 AM, he saw one bus bearing registration No. UP15BT9457 coming from Nizamuddin side and going to Moolchand side. Driver of said bus was driving in a rash and negligent manner and while driving it in a high speed, he hit the bus against a motorcycle which was going ahead of the bus. Due to forceful impact, motorcyclist fell on road. HC Jagjit Singh gave signal to bus driver to stop the bus, but motorcyclist came under the front wheel of driver's side of bus. Bus driver stopped his bus just ahead of the place where he hit the motorcyclist and ran away. Another important document which needs to be discussed here is the postmortem report of deceased according to which cause of death was hemorrhagic shock due to pelvic and limb injuries caused by blunt force impact which could be possible in road traffic accident. Statement of eyewitness HC Jagjit Singh has established the manner of accident and involvement of offending vehicle in the accident. Postmortem report of deceased also proves that deceased died due to injuries suffered by him in the accident. Further, police during investigation also found that the said accident was caused due to the rash and negligent driving of respondent No. 1, hence chargesheeted him for commission of offences under Section 279/304A IPC.
13. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court in case titled "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 MACT No. 4795/16 Avinash & Anr. Vs. Sahadev Singh & Ors. Page No. 5/ 16 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 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.
14. In view of these circumstances and above discussion, petitioners have been able to prove that deceased suffered fatal injuries due to rash and negligent driving of the R1. Accordingly, issue No. 1 is decided in favour of the petitioners and against the respondents.
Issue No. 2 (Compensation):
15. Counsel for R3/Insurance Company has argued that petitioners have already received compensation from Oriental Insurance Co. Ltd. in personal accident claim policy and said amount should be deducted from the compensation granted under Motor Vehicle Act. Counsel for Insurance MACT No. 4795/16 Avinash & Anr. Vs. Sahadev Singh & Ors. Page No. 6/ 16 Company has relied upon the admission of PW2 Shri P Mohnan, Manager Administration, BPL Medical Technologies Pvt. Ltd. who has admitted during his crossexamination that Rs.20 lacs were paid by Oriental Insurance Company in personal accident claim policy to the legal heirs of deceased. PW 2 has also admitted that premium for the said policy was paid by their company. To substantiate his claim, counsel for Insurance Company has also relied upon case titled The New India Assurance Co. Ltd. Vs. Mamatha & Ors. (Civil Appeal No. 3778/2015 decided by Hon'ble Apex Court on 27.07.2016). In my view and as per above discussions, amount already received by legal heirs of deceased under personal accidental claim policy is liable to be adjusted in the award amount.
16. 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.
17. Age of deceased and parents of deceased: As per High School Examination Certificate Ex. PW1/5, date of birth of deceased was 26.02.1987. Date of accident is 25.07.2016 which implies that he was aged about 29 years at the time of accident. Since deceased was unmarried at the time of his fatal accident, age of parents shall be considered for assessment of loss of dependency. As per Aadhar Card Ex. PW1/1 (collectively), date of birth of mother of deceased is 01.06.1963. Hence, she was aged about 53 years on the MACT No. 4795/16 Avinash & Anr. Vs. Sahadev Singh & Ors. Page No. 7/ 16 date of accident (25.07.2016). Thus, relevant multiplier in the present case is 11.
18. Income: PW1 in her affidavit of evidence stated that deceased was working as Assistant Manager Sales in BPL Medical Technologies Pvt. Ltd. and his last drawn salary was Rs.42,615/ per month. In support of their claim, petitioners have got examined PW2 Shri P Mohnan, Manager Administration, BPL Medical Technologies Pvt. Ltd. who has proved appointment letter and increment letter of deceased as Ex. PW2/1 and Ex. PW 2/2 respectively. He has also proved salary slips of deceased for the months of April, 2016 to July, 2016 collectively as Ex. PW2/3. He has proved Income Tax Computation Sheet of deceased issued for April, 2016 to March, 2017 as Ex. PW2/4 and Form 16 of deceased for the assessment year 201516 collectively as Ex. PW2/5. He has proved Personal Accident Claim Form of deceased as Ex. PW2/7 and Form No. 12BA issued for the year 201516 as Ex. PW2/8.
19. As per last pay slip for the month of June, 2016 collectively Ex. PW2/3, total salary of deceased was Rs.42,615/ which included Rs.14,000/ as Basic, Rs.5,600/ as HRA, Rs.875/ as LTA, Rs.1,600/ as conveyance, Rs.14,295/ as special allowance, Rs.1,250/ as medical allowance and Rs.4,995/ as incentive. For the assessment of loss of dependency, only Basic and HRA can be considered as other allowances are personal in nature. Hence, monthly income of deceased comes out to be (Rs.14,000/ + Rs.5,600/) Rs.19,600/ per month.
20. Deduction for personal and living expenses: Deceased was unmarried son.
Thus, as per Sarla Verma's case (supra), onehalf (½) income of the deceased MACT No. 4795/16 Avinash & Anr. Vs. Sahadev Singh & Ors. Page No. 8/ 16 is to be deducted towards personal and living expenses. Hence, income of deceased is to be taken as Rs.9,800/ per month (Rs.19,600/ minus Rs.9,800/).
21. Future prospects: Counsel for petitioners has argued that future prospects of deceased should be considered. However, counsel for Insurance Company has argued that employment of deceased was not even confirmed in BPL Medical Tech. Pvt. Ltd. and for the same reason future prospects cannot be considered. In this regard, counsel for Insurance Company has relied upon cross examination of PW2 Shri P Mohnan, Manager Administration, BPL Medical Technologies Pvt. Ltd. who has admitted during his crossexamination that he has not filed any confirmation letter regarding the job confirmation of deceased. Though PW2 has admitted that he has not filed job confirmation letter, but he has filed increment letter Ex. PW2/2 which shows that monthly salary of deceased was increased from Rs.37,620/ per month to Rs.39,877/ per month w.e.f. 01.04.2016. PW2 has also proved employment record of deceased from Ex. PW2/1 to Ex. PW2/5 as well as Ex. PW2/7 and Ex. PW 2/8. Deceased was a young qualified man having Bachelor's Degree in Electronics & Communication Engineering which is collectively Ex. PW1/5. Had he been alive, his salary would have increased in future as evident from increment letter Ex. PW2/2 which shows increasing trend in salary of deceased. 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, monthly income of deceased is increased MACT No. 4795/16 Avinash & Anr. Vs. Sahadev Singh & Ors. Page No. 9/ 16 by 50%. Monthly income of deceased comes out to be (Rs.9,800/ + 50% of Rs.9,800/) Rs.14,700/ per month.
22. Loss of dependency: After due calculation, loss of dependency comes to (Rs.14,700/ X 12 X 11) Rs.19,40,400/. However, as already discussed above, amount already received by legal heirs of deceased under personal accidental claim policy is liable to be adjusted in the award amount. Petitioners have already received a sum of Rs.20 lacs from Oriental Insurance Company Limited under personal accidental claim policy. Loss of dependency comes out to be Rs.19,40,400/. Hence, petitioners are not entitled for any sum under the head of loss of dependency.
23. Hon'ble apex court in case titled 'Rajesh & Ors. Vs. Rajbir Singh & ors.2013(6) SCALE 563" directed Tribunals that irrespective of the claims made in the application, the Tribunals are required to award compensation which should be just equitable and reasonable. In this regard, the Hon'ble apex court revisited the amount of compensation under conventional heads of loss of consortium, loss of love and affection and funeral expenses. Apex court in para no. 20 & 21 held as under:
"20. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socioeconomic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi (Supra). We may, therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expense. It may be noted that the sum of Rs. 2,500/ to Rs. 10,000/ in those heads was fixed several decades ago and having regard to inflation factor, the same needs to MACT No. 4795/16 Avinash & Anr. Vs. Sahadev Singh & Ors. Page No. 10/ 16 be increased. In Sarla Verma's case (Supra), it was held that compensation for loss of consortium should be in the range of Rs. 5000/ to Rs. 10,000/. In Legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That nonpecuniary head of damage has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of nonpecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.
21. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head of 'funeral Expenses'. The 'Price Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are MACT No. 4795/16 Avinash & Anr. Vs. Sahadev Singh & Ors. Page No. 11/ 16 of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/.
24. Funeral Expenses: Though PW1 has not filed any documentary evidence regarding funeral expenses, but considering the facts and circumstances of the present case and the mandate of the above judgment, a sum of Rs.25,000/ is granted towards funeral expenses.
25. Loss of love and affection: Considering the facts and circumstances of the present case and the mandate of the above judgment, a sum of Rs.1,00,000/ is granted to petitioners towards loss and affection.
26. Loss of Estate:The petitioners are also entitled for loss of estate in respect of death of deceased. Accordingly, an amount of Rs.10,000/ is passed in favour of the petitioners towards loss of estate.
27. The total compensation is assessed as under : S. No. Description Amount 1 Loss of Dependency NIL 2 Funeral Expenses Rs. 25,000/ 3 Loss of Love & Affection Rs.1,00,000/ 4 Loss of Estate Rs. 10,000/ Total Rs.1,35,000/
28. Petitioners are awarded a total amount of Rs.1,35,000/ (Rupees One Lac and Thirty Five Thousand Only) which is to be apportioned equally between the petitioners.
MACT No. 4795/16 Avinash & Anr. Vs. Sahadev Singh & Ors. Page No. 12/ 16RELIEF
29. I hereby award an amount of Rs.1,35,000/ (Rupees Fourteen Lac Twenty Eight Thousand and Six Hundred Only) as compensation with interest @ 9% per annum, from the date of filing of DAR 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.
30. Respondent No. 3, being insurer of offending vehicle, is liable to pay the compensation to petitioners and to indemnify the insured.
31. In view of the above discussion, respondent No. 3 is directed to deposit the award amount in State Bank of India, Saket Court Branch 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.
32. Directions for the respondent No. 3: R3 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.
33. 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. Copy of this award/judgment be given to all concerned.
34. Copy of this Award be given to parties concerned free of cost.
MACT No. 4795/16 Avinash & Anr. Vs. Sahadev Singh & Ors. Page No. 13/ 1635. FormIV of the Modified Claims Tribunal Agreed Procedure to be mentioned in the Award is as under:
1 Date of the accident 25.07.2016 2 Date of intimation of the accident Not available.
by the Investigating Officer to the Claims Tribunal.
3 Date of intimation of the accident Not available.
by the Investigating Officer to the Insurance Company.
4 Date of filing of Report under Not known.
Section 173 Cr.P.C. before the Metropolitan Magistrate.
5 Date of filing of Detailed Accident 12.08.2016 Information Report (DAR) by the Investigating Officer before Claims Tribunal.
6 Date of service of DAR on the 12.08.2016 Insurance Company.
7 Date of service of DAR on the 12.08.2016 claimant(s).
8 Whether DAR was complete in all Yes.
respects?
9 If not, state deficiencies in the Not applicable.
DAR?
10 Whether the police has verified the Yes.
documents filed with DAR?
11 Whether there was any delay or No. deficiency on the part of the Investigating Officer? If so, whether any action/ direction warranted?
12 Date of appointment of the Not available.
Designated Officer by the MACT No. 4795/16 Avinash & Anr. Vs. Sahadev Singh & Ors. Page No. 14/ 16 Insurance Company.
13 Name, address and contact Not available.
number of the Designated Officer of the Insurance Company.
14 Whether the Designated Officer of Yes.
the Insurance Company submitted his report within 30 days of the DAR?
15 Whether the Insurance Company Yes.
admitted the liability? If so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law.
16 Whether there was any delay or Not applicable.
deficiency on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?.
17 Date of response of the claimant(s) 20.10.2016.
to the offer of the Insurance Company.
18 Date of the award. 04.03.2017.
19 Whether the award was passed No. with the consent of the parties?
20 Whether the claimant(s) examined No petitioners were not
at the time of passing of the award examined at the time of
to ascertain his/their financial passing of award, but their
condition? financial condition was
asked and according to their
financial condition and age,
award amount was not kept
in the form of FDRs.
21 Whether the photographs, Photo ICards and other
specimen signatures, proof of requisite information was
residence and particulars of bank already on record.
MACT No. 4795/16 Avinash & Anr. Vs. Sahadev Singh & Ors. Page No. 15/ 16account of the injured/legal heirs of the deceased taken at the time of passing of the award?
22 Mode of disbursement of the Award amount was award amount to the claimant(s). released.
23 Next Date for compliance of the 24.04.2017.
award.
Announced in open Court
Dated:04.03.2017 (Madhu Jain)
POMACT02 (SE)Saket, New Delhi
04.03.2017
MACT No. 4795/16 Avinash & Anr. Vs. Sahadev Singh & Ors. Page No. 16/ 16