Delhi District Court
Sh. Rajnarayan vs Sh. Kuldeep Bajwa on 19 January, 2009
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IN THE COURT OF MS. SEEMA MAINI : JUDGE
MOTOR ACCIDENTS CLAIMS TRIBUNAL : DELHI
Petitions No. : 351/07 & 352/07
Date of filing of the petitions : 23102007
Date of reservation for judgment : 19012009
Date of award : 19012009
In the matter of:
1. Sh. Rajnarayan
S/o Sh. Dukhan
2. Smt. Saraswati
W/o Sh. Rajnarayan
Both R/o: Village Bhahadurpur,
Distt. Ballia (U.P.)
Through their Attorney/son
Sh. Chhote Lal ......Petitioners
Versus
1. Sh. Kuldeep Bajwa
S/o Sh. Sarmuk Bajwa,
R/o V1/9, PhaseI, Budh Vihar,
Delhi110041.
2. M/s AG Envro Infra Project (P) Ltd.
Through it Director
M.C.D. Building,
Deshbandhu Gupta Road, Delhi.
Also At: FWHII, IInd Floor,
Pearl Plaza, Block K24,
Sector18, Noida (U.P.).
...2...
3. The New India Assurance Co. Ltd.
01, Shanti Centre, Ist Floor,
Above Babloo Motors,
Sector17, Vashi,
Navi Mumbai400705.
APPLICATION U/S 166 & 140 OF MOTOR VEHICLE ACT 1988
FOR GRANT OF COMPENSATION
APPEARANCE:
Sh. Deepak Kandpal, Counsel for Petitioner.
Respondent no. 1 is proceeded exparte.
Sh. Dhirender Mathur, Counsel for Respondent No. 2.
Sh. Sujeet Jaiswal, Counsel for Respondent No. 3.
JUDGMENT / AWARD :
1. Vide this common order, I shall dispose off two connected petitions bearing suit no 351/07 and suit no. 352/07, both filed by the petitioners Rajnarayan and his wife Saraswati against the respondents u/s 279/337/304A, claiming compensation for the death of their son Umesh and Smt. Sunita, wife of Umesh, respectively, under Motor Vehicle Act.
2. The brief facts as stated in the petitions are that on 300707 at about 1:45 a.m., Sh. Umesh, (since deceased in suit no. 351/07), the son of the petitioners alongwith his wife Smt. Sunita, (since deceased in suit no. 352/07), elder brother Chhote Lal and one ...3...
relative Hirdaya, were travelling on a Jeep bearing registration no. DL1Q0257. When the jeep had almost crossed the Burari Chowk, one MCD garbage truck bearing registration no. DL1GB5835, belonging to respondent no. 2 M/s AG Envro Infra Project (P) Ltd. and being driven by respondent no. 1, Kuldeep Bajwa, in a rash and negligent manner, hit their jeep very hard from the left side. As a result of the forceful impact of the offending truck, the opposite side gate of the back seat of the jeep got opened and Umesh alongwith his wife Sunita and relative Hirdaya fell on the road and sustained grievous head injuries, fractures, bruises and abrasions on other parts of the body. The driver of the offending vehicle got down from his truck and came to the injured but on seeing them lying unconscious and still, he fled away from the spot alongwith his truck. The PCR Van arrived at the spot, both Umesh and his wife Sunita and the relative Hirdaya alongwith the elder brother Chhote Lal and the driver of the jeep were taken to Trauma Centre where the MLC of Umesh bearing no. 89695 was prepared and he was declared unfit for statement, he was provided the medical treatment, but he succumbed to the injuries sustained by him after about 8 days on 80807. His wife Sunita was declared broughtdead by doctor Satyendra Kumar vide her MLC bearing no. 89696. A case bearing FIR No. 433/07 dated 300707 u/s 279/337/304A IPC was registered on the statement of the driver of the jeep against R1 who was later arrested. It was further stated that the deceased Umesh was 30 years of age and was running a Dhaba/Bhojnalay at Sant Nagar, Burari while his wife Sunita was 24 years of age who was doing the job work of stitching and fixing of fashionable buttons upon export quality clothes. It was stated that due to their sudden and untimely death, the petitioners being the parents and the parents in law of both the deceased, respectively, had suffered physical and mantle pain as well as financial loss, being totally dependent upon their son ...4...
and daughter in law, who did not have any children. Hence, the present claim petition against the respondent no. 1, the driver of the offending vehicle, respondent no. 2, the owner of the offending vehicle and respondent no. 3, The New India Assurance Co. Ltd., the insurer of the offending vehicle.
3. Written statement was filed on behalf of R1 stating that the petition was not maintainable as the vehicle, being driven by him, was not involved in the alleged accident. It was, however, admitted that he had been arrested in the criminal case but it was stated that he had been falsely implicated in the instant case. However, R1 appeared in the court during trial but thereafter, stopped coming and was proceeded exparte vide order dated 41108.
4. Written statement was also filed on behalf of R2 M/s AG Envro Infra Project (P) Ltd., wherein it was stated that the petitioners had been approached the court with clean hands and it was stated that the accident did not take place with the allegedly offending vehicle.
5. Written statement was also filed on behalf of R3 wherein it was stated that the petitioners have no cause of action to file the present petition against the answering respondents but it was admitted that the vehicle bearing no. DL1GB5835, was duly insured with R3 vide policy no. 140863/31/06/02/00002303 which was valid from 71006 to 61007 in the name of R2. It was also stated that R3 would not be liable to pay any compensation, if it was found that any of the terms and conditions of the policy had been violated by R2 or that it was found that the vehicle was being used for the ...5...
purpose other than the purpose which was mentioned in the permit.
6. On the basis of the pleading of the parties, on 270208, the predecessor of this court framed the following issues : In suit no. 351/07 (pertaining to deceased Umesh)
1) Whether Umesh sustained injuries in an accident which took place on 30072007 at about 1:45 a.m. due to rash and negligent driving of truck bearing no. DL1GB5835 by respondent no. 1 ?
In suit no. 352/07 (pertaining to deceased Sunita)
1) Whether Sunita sustained injuries in an accident which took place on 30072007 at about 1:45 a.m. due to rash and negligent driving of truck bearing no. DL1GB5835 by respondent no. 1 ?
2) Whether the petitioner is entitled to a compensation, if any, to what amount and from whom ?
3) Relief.
It may be noted that in both cases, the victims died due to the injuries sustained by them in the accident. Therefore, in issue no. 1 in both the cases, the word "injuries" shall be read as "fatal injuries".
7. Vide order dated 10408, the predecessor of this court consolidated both the petitions bearing no. 351/07 and 352/07 ordering that suit no. 352/07 would be treated as the main case while suit no. 351/07 would be the connected case and all the proceedings recorded in petition no. 352/07 shall also be read in the connected petition.
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8. The petitioners examined four PWs in all. PW1 Chhote Lal, the brother of deceased Umesh and brother in law of deceased Sunita, who was also the eyewitness of the accident and also the lawful attorney of both the petitioners, was examined as PW1 on affidavit which he proved as Ex. PW 1/A. He categorically deposed that on 300707 at about 1:45 a.m., he alongwith both the deceased and the relative Hirdaya, was travelling in the jeep and that at Burari Chowk, a truck bearing no. DL1GB5835 on which the words "On MCD Duty" was written at the front, came from the Wazirabad side, at a very high speed, being driven in a rash and negligent manner and hit the jeep very hard from the back side, as a result of which, the right side gate of the rear seat got opened and the deceased Sunita, deceased Umesh and the relative Hirdaya fell on the road and sustained serious injuries, the injured being removed to the Trauma Centre by the PCR which arrived at the spot. The electricity bill in the name of his wife showing the residential address of PW1 is Ex. PW 1/1 while the election ICard of deceased Umesh, Petitioner no. 1 Sh. Rajnarayan, Petitioner no. 2 Smt. Saraswati, deceased Sunita and that of PW1 Chhote Lal, were brought on record as Ex. PW 1/2 to Ex. PW 1/6 respectively. The duly executed S.P.A.s, signed by both the petitioners in his favour, are Ex. PW 1/7 and Ex. PW 1/8 (in both the matters). The death certificate of deceased Umesh is Ex. PW 1/9 while the death certificate of Sunita is Ex. PW 1/10. Six medical bills for the treatment of Umesh (since deceased) are Ex. PW 1/11 colly. The copies of the school certificate of deceased Umesh are Ex. PW 1/12 and Ex. PW 1/13 while that of Sunita is Ex. PW 1/14, the originals being seen and returned. In his cross examination, he stated that they were all going to the Patel Chest Institute for Sunita's treatment as she was having breathing problems. He further stated that he had seen the truck before the accident and that it was being driven at a very high speed. He further deposed that he ...7...
sustained only minor bruises over his eyebrow, due to which, no MLC was prepared but their relative Hirdaya also sustained injuries and his MLC was prepared in the Trauma Centre.
9. PW2 Ms. Kanta Yadav, Record Keeper from Sushrut Trauma Centre produced the MLC, death certificate and treatment record of deceased Sunita which was taken on record as Ex. PW 2/1 to Ex. PW 2/3. The MLC and the treatment record of deceased Umesh is Ex. PW 2/4 and Ex. PW 2/5 comprising of 16 sheets, the originals were all seen and returned.
10. PW3 Sh. R. K. Srivastav, Record Keeper from Aurna Asaf Ali Hospital produced the post mortem record of deceased Sunita and deceased Umesh which is Ex. PW 3/1 and Ex. PW 3/2 respectively.
11. PW4 S.I. Sahib Singh from P.S. Timarpur produced the record pertaining to FIR No. 433/07, the copies of which were taken on record, the FIR is Ex. PW 4/1, the complaint and the rukka Ex. PW 4/2, the copy of the driving licence of R1 is Ex. PW 4/3, site plan is Ex. PW 4/4, the notice u/s 133 M.V. Act given to R2 and the disclosure by Sh. Dilip Kumar, the Deputy manager of R2 who produced the offending vehicle and also disclosed that it was R1, who was driving the offending vehicle at the relevant time, is Ex. PW 4/5. The arrest memo of R1 is Ex. PW 4/6. The DD entries regarding information of the accident are Ex. PW 4/7 and Ex. PW 4/8, seizure memo of the offending vehicle is Ex. W 4/9, seizure memo of the jeep is Ex. PW 4/10, copy of the R.C. of the offending vehicle in the name of R2 is Ex. PW 4/11, mechanical inspection ...8...
report of jeep and the offending truck is Ex. PW 4/12 and Ex. PW 4/13 respectively. The statements u/s 161 Cr.P.C. of various witnesses are Ex. PW 4/14 to Ex. PW 4/21, the post mortem report of deceased Umesh and deceased Sunita are Ex. PW 4/22 and Ex. PW 4/23 respectively, the copy of the insurance cover note of the jeep is Ex. PW 4/24 while that of the offending vehicle is Ex. PW 4/25, copy of the permit of the offending vehicle is Ex. PW 4/26, the MLCs of one Pradip, deceased Sunita and deceased Umesh are Ex. PW 4/27, Ex. PW 4/28 and Ex. PW 4/29 respectively.
12. After the close of PE, no RE was led on behalf of R1.
13. R2 examined Sh. Kumar Gautam, the authorized representative of R2 as R2W1, he being authorized by the company vide the relevant authority letter which was filed alongwith the written statement. He brought on record the copy of the insurance policy of the offending vehicle as Ex. R2W1/1. He further stated that R1 Kuldeep Bajwa was the driver of the offending vehicle at the relevant time having a valid driving licence, copy of which is Ex. R2W1/2. In his cross examination, he admitted that in response to the notice u/s 133 M.V. Act, R1 was produced as a driver of their vehicle and that the FIR was registered against him and that their vehicle was seized by the police. It was admitted that R2 was the owner of the vehicle while R1 was the driver of the vehicle at the relevant time.
14. R3 examined Sh. Rajender Prasad, Sr. Assistant from RTO Office, Agra, U.P. as R3W1 who produced the original licence register pertaining to the 'K series'. He deposed that the last licence in the 'K series' was issued on 30061989 and thereafter, no licence ...9...
was ever issued in the 'K series' or in any series started with alphabet. The last page of the register pertaining to the licence issued on 30061989 is Ex. R3W1/1. He further deposed that he has seen the copy of the licence of R1 which is Ex. R2W1/2 and deposed that no such licence had been issued from the Agra Authority in the year 2006 as the licences starting with any letter of the alphabet had not been issued after 1989. He also deposed that licence no. 47539 had never been reached in their authority. In his cross examination, he further elucidated that he has not brought the register of the year 2006 as no licences starting with the letter 'K' were ever issued in that year and that the licences with 'K' series were being issued from the year 1975 to 1989 only. He also deposed that the last Sl. No. for 'K' series was K4895 which was issued on 30061989 and that Sl. No. 47539 was never reached in the 'K series' even till the year 1989.
15. No interim award was passed in the instant case.
16. I have heard Sh. Deepak Kandpal, counsel for petitioner, Sh. Dhirender Mathur, counsel for respondent no. 2, Sh. Sujeet Jaiswal, counsel for respondent no. 3, perused the record, scrutinized the evidence adduced and have gone through the relevant case law and my issue wise finding is as under : ISSUE NO. 1: In Suit No. 351/07 :
Whether Umesh sustained 'fatal' injuries in an accident which took place on 30072007 at about 1:45 a.m. due to rash and negligent driving of truck bearing no. DL1GB5835 by ...10...
respondent no. 1 ?
In Suit No. 352/07 :
Whether Sunita sustained 'fatal' injuries in an accident which took place on 30072007 at about 1:45 a.m. due to rash and negligent driving of truck bearing no. DL1GB5835 by respondent no. 1 ?
It was the categorical testimony of PW1, the eyewitness of the accident that the offending vehicle was being driven by R1 at a very fast speed in a rash and negligent manner and, thus,while so driving, he hit the jeep in which PW1 alongwith his son, brother, brother's wife Sarita and one relative were travelling, due to which his brother and bhabhi namely Umesh and Sunita sustained fatal injuries. The factum of such accident having taken place with the offending vehicle has been recorded in the FIR Ex. PW 4/1. The notice u/s 133 M.V. Act exhibited as Ex. PW 4/5 and admitted by R2W1 Sh. Kumar Gautam, was served upon R2 and that R1 was produced as driver of the offending vehicle alongwith the offending vehicle in the police station and R1 was arrested in the criminal case. The police investigation has concluded that it was due to the rash and negligent driving of the offending truck by R1, that the accident took place and both the deceased Umesh and Sunita sustained fatal injuries. The mechanical inspection report of the jeep, in which both the deceased were travelling which is Ex. PW 4/12, shows that the vehicle sustained damages on the left rear door due to which, the left rear body as well as the body of the door, door windows and the rearwheel tyre got damaged, thus, corroborating the testimony of PW1 that it was on the left rear side that the truck hit the jeep. The MLC of deceased Sunita, Ex. PW 4/28 dated 300707, shows that she was brought dead to the hospital at 2:10 a.m. while the MLC of Umesh, ...11...
Ex. PW 4/29 dated 300707, shows that he was admitted in the hospital at the relevant time with serious injuries. The post mortem report of deceased Sunita and deceased Umesh Ex. PW 3/1 and Ex. PW 3/3 respectively, show that it was the opinion of doctor B. K. Sharma, C.M.O., Aruna Asaf Ali Hospital that the cause of death of both the deceased were the injuries which were antemortem in nature and consistent with a vehicular accident.
It is, therefore, prima facie established that both the deceased sustained fatal injuries in the accident involving a rash and negligent driving of the offending vehicle by R1. Issue no. 1 is, accordingly, decided in favour of the petitioners and against the respondents.
ISSUE NO. 2 : (In Suit No. 351/07 & Suit No. 352/07) Whether the petitioner is entitled to a compensation, if any, to what amount and from whom ?
From the election ICard of petitioner no. 1 Sh. Rajnarayan and petitioner no. 2 Smt. Saraswati which are Ex. PW 1/ 3 and Ex. PW 1/ 4 respectively, the relationship between both the petitioners being that of husband and wife is clear. The election ICard of deceased Umesh which is Ex. PW 1/ 2 and the election ICard of deceased Sunita which is Ex. PW 1/ 5 shows the relationship between the two deceased as that of husband and wife and the fact that the deceased Umesh as well as PW1 Chhote Lal, both being sons of petitioner no 1 Rajnarayan, is also amply clear from the election ICard of deceased Umesh and Chhote Lal which is Ex. PW 1/6. The S.P.A. executed in favour of ...12...
PW1 Chhote Lal by both the petitioners gives him the authority to appear on behalf of the petitioners as their attorney. He has categorically deposed vide his affidavit Ex. PW 1/A that the deceased Umesh and deceased Sunita were married for five years, but did not have any child and therefore, both the petitioners, being the parents of deceased Umesh and parents in law of deceased Sunita were the only LRs of both the deceased, a deposition which was not rebutted by any of the respondents nor any contrary proof to the same ever came on record. It is, therefore, accepted that petitioner no. 1 and 2 are the only LRs/dependents of the deceased Umesh and were also the LRs/dependents upon their daughter in law, deceased Sunita, all of them being residents of H. No. 142, Village Bhahadurpur, District Ballia, U.P., as clear from their election ICards and therefore, are entitled to compensation under the following heads : (IN PETITION NO. 351/07: (pertaining to deceased Umesh):
LOSS OF DEPENDENCY: From the election ICard of deceased Umesh which is Ex. PW 1/ 2, his age as on 10101 to be 28 years and therefore, on the date of accident i.e. 300707, his age was more than 34 years. The age of petitioner no. 1 Rajnarayan as revealed by the election ICard Ex. PW 1/ 3 shows that his age as on 10195 was 52 years and therefore, on the date of accident i.e 300707, his age was more than 64 years. The election ICard of petitioner no. 2 Smt. Saraswati shows his age to be 51 years as on 10195 and therefore, on the date of accident i.e 300707, her age was more than 63 years.
In General Manager, Kerala State Road Transport Corporation vs. Susamma Thomas and Ors., 1994 ACJ 01 SC, it has been categorically held by the Hon'ble Apex ...13...
Court that:
"The determination of the quantum must answer what contemporary society 'would deem to be a fair sum such as would allow the wrongdoer to hold up his head amount his neighbours and say with their approval that he has done the fair thing'. The amount awarded must not be niggardly since the 'law values life and limb in a free society in generous scales'."
It was further held:
"In a fatal accident action, the accepted measure of damages awarded to the dependents is the pecuniary loss suffered by them as a result of the death. The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants, whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed up over the period for which the dependency is expected to last. The multiplier represents the number of years' purchase on which the loss of dependency is capitalised."
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In U.P. State Road Transport Corporation and others vs. Trilok Chandra and others 1996 (2) ACJ 831 S.C. following the dictums in the Susamma Thomas case (supra), it was further held that: "under the II schedule, the maximum multiplier can be upto 18 and cannot exceed 18."
In New India Assurance Co. Ltd. vs. Shanti Pathan III (2007) ACC 505 (Supreme Court), it has been held by the Hon'ble Apex Court that: "The multiplier to be adopted is to be determined on the basis of the age of the claimant or the age of the deceased whichever is higher."
In Oriental Insurance Co. Ltd. vs. Syed Ibrahim, 2007 (4) TAC 385 (Supreme Court), in a claim case filed by the parents of the deceased child who was 7 years old at the time of accident, it was observed by the Hon'ble Supreme Court: "Neither the income of the deceased child was capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation and that for computation, the relevant factor would be the age of the parents."
Therefore, in the instant case, it would be the age of the petitioner no. 1 which would determine the choice of multiplier and which as per Schedule II appended to the M.V. Act, would be 5. As per the petitioners, the deceased Umesh was 8th class passed as clear from Ex. PW 1/12 and Ex. PW 1/13 and he was running a Dhaba at Sant Nagar, Burari and earning Rs. 5,000/ per month but no proof that he was running such a Dhaba was ever brought on record. Therefore, guided by the Minimum Wage Index, the ...15...
income of deceased Umesh would be assessed as that of a nonmatriculate which on the date of accident would be Rs. 3,663/ per month which is rounded off to Rs. 3,700/. It is settled law that out of his earnings, he would have spent 1/3 upon his own personal expenses and since he was a married man, he could not have contributed more than 1/3 of his income towards his parents. Therefore, the loss of dependency of the petitioners would be 3,700 x 12 x 5 x 1/3 = 74,000/. Therefore, I grant a compensation of Rs. 74,000/ to the petitioners as loss of dependency.
LOSS OF LOVE AND AFFECTION: The deceased was a young man and little over 34 years of age, in his prime. The untimely death of their young son must have caused immense pain and anguish to the petitioners, bringing about a loss of his love and affection to them.
In Kailashwati vs. Balbir Singh, II 2008 ACC 49 (Delhi), our own Hon'ble High Court has awarded Rs. 30,000/ as loss of love and affection.
Therefore, I grant a compensation of Rs. 30,000/ to the petitioners for loss of love and affection.
MEDICAL TREATMENT AND MEDICINES: The deceased Umesh was admitted in the hospital vide MLC Ex. PW 4/29 having sustained multiple injuries including swelling over the right temporoparietal region of the skull as well as lacerated wounds and abrasions over the left hand and left side of the face and was admitted in the Neuro Surgical Department of the LNJP Hospital. The admission summary of the deceased Umesh Ex. PW 2/5 shows that he was admitted with multiple haemorrhagic contusions over the right fronto temporoparietal region. The ...16...
C.T. Scan of the head which is also a part of the consolidated Ex. PW 2/5, shows that he was put on a continuous ventilation and was given the necessary treatment, all detailed therein, and thereafter on 80808, Umesh finally succumbed to the injuries sustained by him in the accident. No doubt, treatment in LNJP Hospital is free of cost, the hospital being a Govt. Hospital, but it cannot be over looked that even in Govt. Hospital, some amount of expenditure is incurred by the attendants of the patient on purchase of medicines etc. Keeping in view the nature of injuries sustained by the deceased and the number of medicines and medical/surgical instruments that may have been required, I grant a sum of Rs. 3,000/ for medical treatment to the petitioners.
FUNERAL EXPENSES: I grant a sum of Rs. 10,000/ towards funeral expenses to the petitioners. LOSS OF ESTATE: I grant a sum of Rs. 5,000/ towards loss of estate to the petitioners. (IN PETITION NO. 352/07: (pertaining to deceased Sunita):
LOSS OF DEPENDENCY: The petitioners are the parents in law of the deceased Sunita and as per the testimony of the attorney of the petitioner i.e. PW1 Chhote Lal, she was doing the job work of stitching and putting buttons of export quality clothes. However, no proof that the deceased Sunita was so employed, was brought on record. Both the deceased and both the petitioners were living together as is clear from their election ICard which has ...17...
been brought forth. Considering the age of petitioner no. 2 Smt. Saraswati, being more than 63 years of age and there being no other female in the house, it can safely be presumed that it was the deceased Sunita who was running the house being the housewife and it was this kind of dependency that the petitioners had been deprived off.
In "Lata Wadhwa & Ors. Vs. State of Bihar & Ors." , Hon'ble Apex Court has observed that: "So far as the deceased housewives are concerned, in the absence of any data and as the housewives were not earning any income, attempt has been made to determine the compensation, on the basis of services rendered by them to the house. On the basis of the age group of the housewives, appropriate multiplier has been applied, but the estimation of the value of services rendered to the house by the housewives, which has been arrived at Rs. 12000/ per annum in cases of some and Rs. 10,000/ for others, appears to us to be grossly low. It is true that the claimants who ought to have given datas for determination of compensation, did not assist in any manner by providing the datas for estimating the value of services rendered by such housewives. But even in the absence of such datas and taking into consideration the multifarious services rendered by the housewives for managing the entire family even on a modest estimation should be Rs. 3000/ per month.
Reverting back to the case in hand, the income of the deceased Sunita is assessed to be Rs. 3,000/ per month.
In Tejpal Singh Yadav & Ors. vs. Rajasthan State Road Transport Corporation, III (2003) ACC 140, the Hon'ble Delhi High Court has held that the father in law entitled to claim compensation for the death of his daughter in law but it has been observed that the main sufferer on the death of a lady is her husband who suffers the most because he is entirely dependent upon the services rendered by her and that the father in ...18...
law could not have expected that the daughter in law would render services throughout her life for him. In that case, the multiplier of 10 in the case of the father in law being 60 years of age was upheld but in the instant case, it would be the latest judgment of the Hon'ble Apex Court titled New India Assurance Co. Ltd. vs. Shanti Pathan III (2007) ACC 505 (Supreme Court), wherein it was held by the Hon'ble Apex Court that: "The multiplier to be adopted is to be determined on the basis of the age of the claimant or the age of the deceased whichever is higher."
Since the age of both the petitioners is 64 and 63 years respectively, as per II Schedule, the appropriate multiplier would be 5. Furthermore, it can also be safely assumed that 1/3 of her income would have been spent on her own personal expenses and she could not have contributed more than 1/3 of her income towards her parents in law who were living with her. Therefore, loss of dependency would be 3,000 x 12 x 5 x 1/3 = 60,000/. Therefore, I grant a compensation of Rs. 60,000/ to the petitioners as loss of dependency.
FUNERAL EXPENSES: I grant a sum of Rs. 10,000/ towards funeral expenses to the petitioners. LOSS OF LOVE AND AFFECTION: In Kailashwati vs. Balbir Singh, II 2008 ACC 49 (Delhi), our own Hon'ble High Court has awarded Rs. 30,000/ as loss of love and affection.
Therefore, I grant a compensation of Rs. 30,000/ to the petitioners for loss of love and affection.
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TOTAL COMPENSATION AWARDED TO PETITIONERS
(PETITION NO. 351/07)
LOSS OF DEPENDENCY RS. 74,000/
LOSS OF LOVE & AFFECTION RS. 30,000/
MEDICAL TREATMENT & MEDICINES RS. 3,000/
FUNERAL EXPENSES RS. 10,000/
LOSS OF ESTATE RS. 5,000/
_____________
TOTAL RS. 1,22,000/
TOTAL COMPENSATION AWARDED TO PETITIONERS
(PETITION NO. 352/07)
LOSS OF DEPENDENCY RS. 60,000/
LOSS OF LOVE & AFFECTION RS. 30,000/
FUNERAL EXPENSES RS. 10,000/
_____________
TOTAL RS. 1,00,000/
No interim award has been passed in the instant case. Therefore, the petitioners are entitled to a total compensation of Rs. 1,22,000/ (in Petition No. 351/07) and Rs. 1,00,000/ (in Petition No. 352/07). They shall also be entitled to interest @ 7.5% p.a. from the date of filing of the petitioner i.e. 231007 till its realization.
It has been contended by R3, The New India Assurance Co. Ltd., that it would not be liable to pay the compensation as R2, the insured had violated the terms and conditions of the insurance policy which is Ex. R2W1/1 since the driver of the offending vehicle at the relevant time whose admitted driving licence Ex. R2W1/2 was a fake licence which has been proved to be so by R3W1, the concerned official from the RTO ...20...
Office, Agra, U.P. The law on the subject has been settled by the celebrated judgment of the Hon'ble Supreme Court titled as National Insurance Company Ltd. vs. Swaran Singh, 2004 I AD (SC) 491. While summarizing the findings in the said case, the Hon'ble Apex Court held that:
" (iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in subsection (2) (a)
(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time."
It was further laid down "Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149 (2) read with subsection (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. such determination of claim by the Tribunal will be enforceable and the money found will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner u/s 174 of the Act as arrears of land revenue."
In National Insurance Co. Ltd. vs. Bhagwati Devi & Ors., IV 2006 ACC 329, following the judgment in the Swaran Singh case, it was held by the Hon'ble Delhi High ...21...
Court that "Law does not require the owner to himself go and verify the driving licence of the driver from the licencing authority and therefore, in the absence of any ground to question and doubt the authenticity of the licence of the driver and in absence of any such suspicion, the owner cannot be hold liable." It was further held that the onus to prove that the owner was negligent and failed to take due care and caution before employing the driver is upon the insurer.
The Hon'ble Supreme Court in Lal Chand vs. Oriental Insurance Co. Ltd., held that "It was the requirement of the insurer to prove that the owner was negligent while employing the driver and did not take due caution that the driver hold a valid driving licence. Reverting back to the case in hand, R3 was merely able to prove that the driving licence of R1 has not been issued by the concerned Agra Authority. However, it failed to prove that R2, the owner of the offending vehicle was in any manner whatsoever negligent because for all purposes, R1 held a driving licence which appeared to be genuine to one and all and therefore, in the absence of any cogent proof that there was any willful breech of the terms and conditions of the insurance policy by the insured, R3 cannot be absolved off its liability or be granted any recovery rights in the instant case. Therefore, R3 i.e. The New India Assurance Co. Ltd., being the insurer of the offending vehicle vide the admitted insurance policy Ex. R2W1/1 would be liable to pay the compensation.
ISSUE NO. 3 : Relief.
(In Petition No. 351/07):
In view of my findings on issue no. 1 and 2 above, the petitioners are granted a ...22...
total compensation of Rs. 1,22,000/ alognwith interest @ 7.5% p.a. on the compensation amount from the date of filing of the petitioner till its realization. The said compensation amount is approportioned between the petitioners alongwith the proportionate interest as under : Petitioner no. 1 Rs. 61,000/ (alongwith proportionate interest) Petitioner no. 2 Rs. 61,000/ (alongwith proportionate interest) Out of the said compensation amount awarded to the petitioners, Rs. 40,000/ each shall be kept in an FDR for a period of three years with no facility of withdrawal or advance or loan. However, the petitioners shall be entitled to receive the quarterly interest upon the same.
(In Petition No. 352/07):
The petitioners are awarded a total sum of Rs. 1,00,000/ alongwith interest @ 7.5% p.a. on the compensation amount from the date of filing of the petitioner till its realization. The said compensation amount is approportioned between the petitioners alongwith the proportionate interest as under : Petitioner no. 1 Rs. 50,000/ (alongwith proportionate interest) Petitioner no. 2 Rs. 50,000/ (alongwith proportionate interest) Out of the said compensation amount awarded to the petitioners, Rs. 30,000/ each shall be retained in an FDR for a period of three years with no facility of withdrawal or advance or loan. However, the petitioners shall be entitled to withdraw the quarterly interest upon the same.
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17. R1 Kuldeep Bajwa, being the driver of the offending vehicle and R2 M/s AG Envro Infra Project (P) Ltd., being the owner of the offending vehicle are joint tort feasors are jointly and severally liable to pay the compensation amount. R3 being the insurer of the offending vehicle is liable to indemnify R2.
18. R3, The New India Assurance Company Ltd., is accordingly, directed to deposit the compensation amount awarded to the petitioners by way of a separate crossed cheques with the tribunal within 30 days from the date of the award. Copy of this judgment/award be also placed in petition bearing no. 351/07 and a copy of the award be also given to the parties free of cost. No order as to costs. File be consigned to the Record Room.
ANNOUNCED IN THE OPEN COURT on 19th of January, 2009 (SEEMA MAINI) JUDGE:MACT:DELHI