Delhi District Court
Avadh Kumar vs Umesh Kumar Chaurasia on 30 April, 2015
IN THE COURT OF MS. KIRAN BANSAL
P.O. MOTOR ACCIDENT CLAIMS TRIBUNAL:
NORTH-EAST DISTRICT : KKD COURTS : DELHI
MACT No. 180/13
Unique Case Identification No:- 02402C0262382013
1. Avadh Kumar
S/o Late Sh. Ram Braksh aged 39 years (Son)
2. Smt. Kusum Rani
D/o Late Sh. Ram Braksh aged 47 years (Daughter)
3. Parmod Kumar
S/o Late Sh. Ram Braksh aged 44 years (Son)
4. Rakesh Kumar
S/o Late Sh. Ram Braksh aged 37 years (Son)
5. Smt. Kamlesh
D/o Late Sh. Ram Braksh aged 34 years (Daughter)
6. Mukesh Kumar
S/o Late Sh. Ram Braksh aged 31 years (Unmarried Son)
7. Rajesh Kumar
S/o Late Sh. Ram Braksh aged 26 years (Unmarried Son)
All R/o A-22, Gali No. 4A,
West Karawal Nagar, Delhi - 110094.
......Petitioners
Versus
1. Umesh Kumar Chaurasia
S/o Ram Sewak Chaurasia
R/o A-124, GF-2, Aankur Vihar,
Near SLF Ved Vihar, Loni,
Ghaziabad (U.P) (Driver / Registered Owner)
2. United India Insurance Company Ltd.
D-8, CSA Marg, Vikas Marg,
Laxmi Nagar, Delhi - 110092
........ Respondents
i) Date of Institution of petition : 21/08/2013
ii) Date when fixed for Orders : 21/04/2015
iii) Date of Decision : 30/04/2015
APPLICATION U/S 166 & 140 M.V. ACT 1988
FOR GRANT OF COMPENSATION
Kiran Bansal
P.OMACT (NorthEast)
MACT No. 180/13 Page 1/9
AWARD
1. LRs of deceased Ram Braksh have filed the present claim petition under Sec. 166 & 140 of MV Act stating that on 20/05/2013 at about 6:37 PM deceased was going to his house after finishing his duty. After he got down from the Bus on the main road, he proceeded further on foot and while crossing in front of RAC Main Gate near PTS Pushta Road, Wazirabad Road, Delhi suddenly a Motorcycle bearing registration no. DL 4S AL 6369 which was being driven by its driver/ respondent no. 1 at a very high speed, rashly and negligently hit the deceased with great force due to which deceased fell down on the road and had sustained grievous injuries. He was immediately taken to GTB hospital where during his treatment he died on 21/05/2013. The FIR No. 269/13 u/sec 279/304-A IPC was also registered at PS Khajuri Khas in this respect.
2. Summons of the claim petition were issued to the respondents. Respondent no. 1 filed his WS denying the accident due to his vehicle/motorcycle and stated that he had only taken the injured / deceased to hospital.
Respondent no. 2 United India Insurance Co. Ltd. has also filed WS. They have not denied that the vehicle bearing No. DL 4S AL 6369 was insured with them in the name of Umesh Kumar Chaurasia for the period from 16/02/2013 to 15/02/2014 bearing Insurance Policy No 2215003112P302393727.
3. On the basis of the pleadings of the parties, following issues were framed:-
1) Whether deceased Ram Braksh died on account of injuries sustained in accident taking place on 20/05/2013 at about 6:37 PM in front of RAC Main Gate, Near PTS Pushta Road, Wazirabad Road, Delhi within the jurisdiction of PS Khajuri Khas due to rash and negligent driving of vehicle bearing no. DL 4S AL 6369 by respondent no. 1 ? OPP
2) Whether petitioners are entitled to compensation, If so to what amount and from whom?
3) Relief
4. I have heard the counsels for both the parties and gone through the entire Kiran Bansal P.OMACT (NorthEast) MACT No. 180/13 Page 2/9 evidence on record carefully. My issue wise findings are as below :
5. ISSUE NO. 1Whether deceased Ram Braksh died on account of injuries sustained in accident taking place on 20/05/2013 at about 6:37 PM in front of RAC Main Gate, Near PTS Pushta Road, Wazirabad Road, Delhi within the jurisdiction of PS Khajuri Khas due to rash and negligent driving of vehicle bearing no. DL 4S AL 6369 by respondent no. 1 ? OPP Petitioner no. 1 has examined himself as PW1. However, he is not an eye witness to the accident. Petitioner has examined Ct. Gajender Singh as PW2.
In the present case DAR Ex. PX (colly) is filed which includes the copy of FIR, Postmortem report, mechanical inspection report and site plan.
PW2 who has reached the spot of the incident has stated that he had not seen the accident but when he reached the spot he had found motorcycle of respondent no. 1 in accidental condition. Respondent no. 1 has entered into the witness box and has stated that no accident occurred with his vehicle and he had merely found injured on the road and taken him to hospital on humanitarian ground. However, two facts remained unexplained on behalf of respondent no. 1. First if he had taken the injured to the hospital on humanitarian ground then why PW2 who had reached the spot after receiving the phone call has stated that he had found the motorcycle of respondent no. 1 in accidental condition on the spot. Alongwith DAR the mechanical inspection report of the offending vehicle has also been filed which shows that the motorcycle of the respondent no.1 had fresh damages. If respondent no. 1 had parked the vehicle on the side of the road as stated by him and his vehicle had not hit the deceased then how there was fresh damages to his motorcycle as observed in mechanical inspection report also remained unexplained on the part of the respondent no. 1. The mechanical inspection report coupled with the statement of PW2 that when he reached at the spot he had found motorcycle of respondent no. 1 in accidental condition shows that the vehicle of respondent no. 1 was involved in the accident and that the accident had Kiran Bansal P.OMACT (NorthEast) MACT No. 180/13 Page 3/9 occurred with motorcycle of respondent no. 1 only. These two facts also falsify the statement of respondent no. 1 that he had merely taken the injured to the hospital and his vehicle was not involved in the accident. It is not the defence of the respondent no. 1 that he was not at fault or that the accident occurred due to fault of deceased.
To determine the aspect of negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court 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 and the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and it was held that, mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act. It is also settled law that the term rashness and negligence has to be construed 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.
Further the Hon'ble High of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble Mr. Justice G. P. Mittal, held as under:
"The Claims Tribunal was conscious of the fact that negligence is a sine Kiran Bansal P.OMACT (NorthEast) MACT No. 180/13 Page 4/9 qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
Therefore, reading all the documents filed by the petitioner as a whole it is clear that respondent no. 1 was driving the vehicle in rash and negligent manner.
Thus, in view of the DAR Ex. PX and in view of above discussion, it is proved that the deceased Ram Braksh sustained fatal injuries in the accident which occurred on 20/05/2013 due to rash and negligent driving of offending vehicle bearing no. DL 4S AL 6369 driven by its driver i.e Respondent no. 1. The issue is decided accordingly.
6. ISSUE NO. 2Whether petitioners are entitled to compensation, If so to what amount and from whom?
PW1 Sh. Avadh Kumar, son of the deceased has stated in his affidavit Ex. PW1/A that the deceased was working as personal assistant at Shop No. 54, Janpath, Connaught Place, New Delhi and was getting salary of Rs. 12,000/- per month. However, no documentary proof regarding the income of the deceased has been placed on record. Therefore, income of the deceased is assessed as per the minimum wages of a unskilled worker on the date of accident i.e Rs.7722/-per day.
It is stated in the affidavit of PW1 that the deceased has left behind LRs i.e petitioner no. 1 to 7. However, during the cross-examination PW1 has stated that he is working and getting Rs. 8000/- per month as salary. He has also stated that his Kiran Bansal P.OMACT (NorthEast) MACT No. 180/13 Page 5/9 other three brothers are working but petitioner no. 7 is not working. Petitioner no. 2 and 5, married daughters and petitioner no. 7 have not stepped into the witness box to depose that they were dependent upon the deceased and therefore, they are not considered dependent.
Therefore, deceased had no dependents.
As per the order of Hon'ble High Court of Delhi in the case of Kamlesh Mittal & Ors. Vs. Oriental Insurance Co. Ltd. & Ors. in MAC. APP.283/2010 dated 03.09.2014 it is held that:-
"14. Hence, the Supreme Court has laid down a standard formula / guideline to ensure consistency in the Awards of various tribunals. However, a perusal of the guidelines laid down shows that a situation like this has not been dealt with namely, where the deceased is married and has children who are all settled and the widow is the only person who could be considered as dependent. I may, however, note that the Supreme Court noted that in case of a bachelor where deduction of 50% was stated, the Court noted that this was because it was assumed that a bachelor would tend to spend more on himself. Further there is a possibility of his getting married in a short time in which event the contribution to the parents / siblings was likely to be cut drastically.
15. In my opinion, in a situation like the present one, the situation of the deceased cannot be treated at par with a bachelor. There is merit in the said submission of learned counsel for the appellant that a man of 54 years of age who is professionally well qualified with two settled children and a wife would not be spending 50% of his wages for personal living expenses. He would be inclined to accumulate wealth for his old age days and also for the benefit of his wife and children. One cannot also ignore that being a father of a married daughter and a son, who is likely to get married he would have spent on the marriage of the son, on his grand children after they were born. These are expenses which a man who has grown to that age and who is well settled would normally be incurring. These expenses cannot be ignored. Keeping in view these facts and circumstances in my opinion, the appropriate deduction to be made from the income of the deceased in the facts and circumstances of this case was 1/3 rd Kiran Bansal P.OMACT (NorthEast) MACT No. 180/13 Page 6/9 and not 50% as done by the tribunal. Hence, 1/3rd is only to be deducted from personal expenses."
Similarly, as per the judgement Smt. Shakuntala Vs. Naresh Kumar in MAC. APP. 288/2011 dated 16.05.2011 it is held that:
"6. I am inclined to agree with the aforesaid contention of Mr. Mannie for the reasons that though the deceased left behind his widow and two unmarried daughters who were wholly dependent upon him, the deceased also left behind him two married daughters and a son, who though may not have been dependent on him stricto senso, nevertheless formed part of his family. The married daughters of the deceased have been awarded only a sum of Rs. 10,000/- each while the son of the deceased has been awarded Rs. 15,000/- only by the Claims Tribunal.
7. It is well known that in Indian Society married daughters are also the beneficiaries of various gifts and cash amounts from the father from time to time. The appellant No. 4, who was the son of the deceased, was also unmarried and in due course of time the father would have expended some amount of money on his marriage and would have supported him in times of need. Accordingly, in my view, the deduction of one- fourth of the income of the deceased ought to have been made by the Claims Tribunal while calculating the loss of dependency of the appellants."
In view of the above case law, deceased herein would also have spent on giving gifts to his married daughters and sons and grand children. He would also be saving some amount for the marriage of his two unmarried sons and for his old age. However, this fact also cannot be lost site of that his wife has pre deceased him and therefore, one half is deducted towards expenses.
PW1 has stated in his affidavit that the age of the deceased was 64 years at the time of accident. As per the Voter Identity card deceased was aged about 45 years in the year 1994. As per the postmortem report the age of the deceased is 65 years. Therefore, in view of the above documents, the age of the deceased is taken to be around 65 years.
Therefore, the total loss of dependency/estate would be calculated as follows :
Kiran Bansal P.OMACT (NorthEast) MACT No. 180/13 Page 7/9 Rs. 7722/- X 12 X 7 (Multiplier) = Rs. 6,48,648/-
Rs. 6,48,648/- - Rs. 3,24,324/- ( ½ personal expenses) = Rs. 3,24,324/-
Besides this, petitioners are also entitled for compensation under the following heads:-
Love and affection Rs. 100,000/-
Funeral expenses Rs. 25,000/-
Total Rs.1,25,000/-
Petitioners are also entitled to Rs. 20,000/- as litigation charges. Thus, the total compensation would amount to Rs. 4,69,324/-
7. Liability Respondent no.2 is the insurance company which admittedly has issued a valid insurance policy to the offending vehicle. Respondent no.2 being insurance company in its written statement has admitted that there is valid insurance policy issued for the period from 16/02/2013 to 15/02/2014 bearing Insurance Policy No 2215003112P302393727. There is no evidence on behalf of respondent no.2 to show that there was any violation of the rules and terms of policy by the respondents no.1 .
Hence, I am of the opinion that respondent no.2 being insurance company is liable to pay the compensation on behalf of respondents no.1 .
8. Relief Award is passed directing Respondent no. 2 i.e United India Insurance Company Ltd., to pay to the petitioners no. 1 to 7 a sum of Rs. 4,69,324/- (including interim compensation if any) by way of depositing cross cheques in favour of petitioner no. 1 to 7 in equal proportions along with interest @ 9% per annum from the date of filing of the claim petition (i.e.21/08/2013). If award is not complied within 30 days, respondent no. 2 shall pay penal interest @ 12% p.a. for the default period.
Kiran Bansal P.OMACT (NorthEast) MACT No. 180/13 Page 8/9
9. Put up for compliance on 30/05/2015.
Attested copies of the award be furnished to the concerned parties from court for compliance. File be consigned to record room.
Pronounced in Open Court on (KIRAN BANSAL)
30/04/2015 P.O. MACT(North-East)
KKD Delhi
Kiran Bansal
P.OMACT (NorthEast)
MACT No. 180/13 Page 9/9