Delhi District Court
Smt. Kulwant Kaur Widow/O Late Sh. Gopal ... vs Sh. Giribar Singh S/O Sh. Ladu Singh ... on 29 May, 2012
1
IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT & SESSIONS
JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
ROHINI COURTS, DELHI
(MACT No. 109/11)
1. Smt. Kulwant Kaur Widow/o Late Sh. Gopal Singh (Wife)
2. Sh. Rajender Singh S/o Late Sh. Gopal Singh (Son)
3. Sh. Parvinder Singh S/o Late Sh. Gopal Singh(son)
All Residents of J - 866,Mangol Puri, Delhi - 110083.
4. Smt. Swaranjeet Kaur D/o Late Sh. Gopal Singh (Daughter)
W/o Sh. Darshan Singh
R/o RZ/Q-24, Nihal Vihar,
Delhi - 110041.
5. Smt. Paramjeet Kaur D/o Late Sh. Gopal Singh (Daughter)
W/o Sh. Buta Singh
R/o RZ/Q-68, Nihal Vihar,
Delhi - 110041. .....Petitioners
Versus
1. Sh. Giribar Singh S/o Sh. Ladu Singh (Driver)
R/o Village Mahwa,PS - Neemka Thana,
District Sikar, Rajasthan.
2. Sh. Ram Jat S/o Sh. Pala Ram(Owner)
R/o Kehrawali, Post Puranabans,
PS - Neemka Thana, District Sikar,
Rajasthan.
3. H. D. F. D. Egro General Insurance Co. Ltd. (Insurer)
Sanghvi Upasana Tower, Jaipur (Rajasthan).
4. Sh. Jasbir Singh
S/o Late Sh. Gopal Singh
R/o D - 51/B, Shiv Nagar,
Nangloi, Delhi. .....Respondents
Date of institution------ 22.03.2011
Date of decision--------- 29.05.2012
2
(Application u/s 166 and 140 of Motor Vehicles Act
for grant of compensation)
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JUDGMENT:-
As per averments made in the petition, Sh. Gopal Singh (hereinafter referred to as deceased) aged about 67 years was coming from Mangol Puri on his two wheeler Scooter No. DL-6SK-4973 and was going to Mayapuri for delivering the goods. As soon as he reached near the flyover of Mangol Puri, all of a sudden a truck bearing no. RJ-23GA-3257 came and hit the scooter of the deceased in rash and negligent manner. The offending truck was driven by the respondent no. 1 and he was overpowered by the Police at that time. The deceased was removed to the Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi, where he was declared dead by the doctors. The deceased died due to fatal accident caused by the respondent no. 1. A criminal case under section 279/304-A IPC was registered against respondent no. 1 vide FIR No. 773/2010 in Police Station Mangol Puri.
Petitioner no. 1 being widow, petitioner no. 2 & 3 being sons and petitioners no. 4 & 5 being married daughters of the deceased, alleged that the deceased was a self employed person and was earning Rs.35,000/- per month. They claimed sum of Rs.15 lakhs as compensation along with interest @ 12% p.a. from respondents no. 1 to 3 being owner, insurance company and driver of the offending vehicle.
Respondents no. 1 & 2 in their joint written statement denying the entire petition and stated that the accident was caused due to sole negligence of the deceased. Respondent no. 3 / insurance company in his written statement has stated that respondent no.1 was neither holding an effective driving license nor competent to hold the same and respondent no.2 was not having a valid permit on 3 the date of accident. Respondent no.3 / insurance company tried to avoid its liability on various technical grounds.
On the basis of pleadings of the parties, following issues were framed on 06.08.2011 by my ld. Predecessor:
1) Whether Late Sh. Gopal Singh died due to road accident on 30.11.2010 at about 11.30am near flyover of Mangolpuri, Delhi within the jurisdiction of PS: Mangolpuri, due to rash and negligent driving of vehicle no.RJ-23GA-3257 being driven by respondent no.1 which hit the scooter no.DL-6S-4973 which was driven by the deceased? OPP
2). Whether the petitioners are entitled to compensation, if so, to what an extent and from which of the respondents? OPP
3). Relief.
In order to prove their case, petitioners i.e. legal heirs of the deceased examined only two witnesses i.e. Sh. Rajinder Singh-petitioner no. 1 as PW-1 and Constable Vijayvir (eye witness) as PW-2.
PW1, the son of the deceased has deposed in terms of claim petition and proved on record death certificate of the deceased as Ex.PW1/1, Copy of ITR as Ex.PW1/2 to Ex.PW1/3, criminal case record as Ex.PW1/4 to Ex.PW1/31 (Colly), PAN Card of deponent as Ex.PW1/32. PW2 Constable Vijayvir, who was on petrolling duty at the time of accident, being eye witness of the accident has narrated the factum of accident and stated that alleged accident took place due to rash and negligent driving of offending Truck bearing no. RJ-23GA-3257 by its driver / respondent no.1.
Despite opportunities given, respondents have not lead any evidence, therefore, the evidence on behalf of the respondents is treated as closed and the matter was fixed for final arguments.
4I have heard counsel for the parties and gone through the record of the case. My decision on the above mentioned issues is as under :
ISSUE NO. 1:-
The principles to be followed in the case of motor accident claim have been laid down by the Hon'ble High Court of Guwahati in case cited as Renu Bala Paul and Ors. vs. Bani Chakraborty and Ors. 1999 ACJ 634 by Hon'ble Guahati High Court that:
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society.
N.K.V. Bros (P) Ltd. vs. M.Karumai Ammal & Ors. (1980) 3 SCC 475, Hon'ble Supreme Court has observed as under:-
"In Road accidents are one of the top killers in our country, especially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court 5 should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
Hence the standard of proof though lesser than civil and criminal case, but same evidence is required to brought on record to show that the accident was caused due to rash and negligent driving of offending Truck. There is specific statement of PW-2 eye witness, who was on patrolling duty, that truck bearing no. RJ-23GA-3257 had hit the scooter no. DL-6SL-4973 from behind and deceased was removed to hospital by some public person and driver of the offending vehicle was arrested by the police. Police recorded his statement and enquired about the factum of accident and lodged FIR. Mere suggestions were put to the witness by the counsel for insurance company and by respondent no.1 & 2, but not proved by leading any defence evidence by respondents. The certified copy of criminal case record point out that police after investigation also found that accident took place due to rash and negligent driving of offending Truck by respondent no. 1. Statement of eye witness PW-2 cannot be discarded as he was present at the time of accident. It is not the case of the respondents that any complaint to any authority against the alleged false implication of respondent no.1 in criminal case was made or there was any enmity of the driver of the Truck and with the legal heirs of deceased or eye witness or IO which facilitated them to involve him in the false case. Postmortem report of the deceased point out that he died due to injuries suffered in road accident. The statement of PW-2 is trustworthy and reliable. In the absence of any evidence to the contrary as to prove the defence taken by respondents and on the basis of facts available on record, I am of the considered view that because of forceful impact of the offending vehicle, deceased has suffered fatal injuries due to rash and negligent driving of offending vehicle i.e. Truck bearing no. RJ-23GA-3257 being driven in rash and negligent manner by respondent no.1. In view of the above 6 discussions, this issue is decided in favour of petitioners and against the respondents.
ISSUE NO. 2:-
Petitioners are entitled to both pecuniary and non pecuniary damages. Petitioners have alleged that deceased was self employed person at the time of accident and his annual income was Rs.2,25,000/- as per his ITR Ex.PW1/2. Though it is disputed by the respondents but merely disputing the said version and not proving the same by any evidence is not sufficient to hold that deceased was not earning that much amount. Hence it has been proved by leading evidence on record that deceased was yearly earning Rs.2,25,000/-. As far as the factum of petitioners being the legal heirs of deceased is concerned, it is not disputed. They were financially dependent upon the deceased at the time of accident. As per postmortem report the age of accused is 67years at the time of death, so future prospectus of 30% has to be added in his income as per Justice Singhvi's Judgment of the year 2012. Hence the monthly income of deceased comes to Rs. 2,92,500/- (Rs.2,25,000/- + 30%).
As already discussed above, the age of the deceased was approximately 67 years at the time of his death as per driving licence of the deceased. Hence, in view of the judgment of Hon'ble Supreme Court given in Pushpa & Others Vs National Insurance Co. Ltd. & Another reported in 2011 ACJ 2140, multiplier of 5 has to be applied upon the income of the deceased.
Deceased had left behind his wife, two sons and two daughters. Hon'ble Supreme Court in Sarla Verma vs. DTC 2009 (6) SCALE 129 has held that father is generally not treated as dependent upon the son, so in view of the decision of Sarla Verma's case, the deduction of 1/3rd from the salary of deceased has to be made upon his personal expenses. Hence after deducting 1/3th from yearly income of Rs.2,92,500/-, yearly dependency comes to Rs.1,95,000/- per year. Accordingly, 7 in this case, loss of dependency is assessed at Rs.9,75,000/- (1,95,000 x 5). Hence, the petitioners are only entitled to Rs.9,75,000/- on account of loss of dependency.
Petitioners have averred that they have spent over the last rites and rituals of the deceased but not brought on record any document regarding the same. It is a judicial noticeable fact that normally some expenses are incurred upon cremation, Chotha or Theharvin ceremonies etc. Hence, I deem it proper to grant lump sum amount of Rs. 15,000/- as funeral charges.
Petitioners are in my view also required to be awarded sum of Rs.2,50,000/- towards loss of estate and Petitioner no.1 is also entitled to sum of Rs.50,000/- towards loss of consortium in view of the decision of Hon'ble High Court in Bedo Devi & Ors. Vs Jagat Singh & Others, reported in 2010 ACJ 2249. I also award a sum of Rs.1,50,000/- towards Loss of love and affection, loss of company, parental guidance and encouragement, trauma and loss of other discomfort after relying upon the judgment of Delhi High Court in case Sajha vs. National Insurance Co. Ltd. 2010 ACJ 627.
Respondent no.3 Insurance Company has not brought on record any evidence to point out that respondent no.1 was not having any valid driving license or permit and fitness of the offending Truck was improper as well as failed to bring on record any evidence to point out that it is not liable to pay compensation amount as assessed by the court or any term or condition of the insurance policy was breached by the insured or it has any limited liability. This fact also shows that respondent no.3 Insurance Company has no defence, accordingly in such circumstances and keeping in view the existence of valid insurance policy, respondent no. 3 alone becomes entitled to pay entire compensation amount.
After considering the merits of the case, petitioners are entitled to get the following total compensation from the respondent no. 3 insurance company :8
Pecuniary Damages
a) Funeral charges ======================Rs. 15,000/-
b) Loss of consortium ====================Rs. 50,000/-
c) Loss of dependency=================== Rs. 9,75,000/- Non Pecuniary Damages
a) Loss of love and affection etc.============Rs. 1,50,000/-
b) Loss of Estate ======================= Rs. 2,50,000/-
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Total Rs. 14,40,000/-
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Petitioners shall be entitled to interest at the rate of 9% p.a as per the judgment in case New India Assurance Co. Ltd Vs Bhudhia Devi and others reported in 2010 ACJ 2045 on this amount from 17.01.2011 till realization. This issue is decided accordingly in favour of petitioners and against the respondents.
ISSUE NO. 3 (Relief):-
On the basis of findings given above, present petition is disposed off and an award is passed. Respondent no. 3 insurance company is directed to pay within 30 days a sum of Rs.14,40,000/- to the petitioners along with interest at the rate of 9% p.a. from 17.01.2011 till this amount is fully paid.
It is ordered that 75% of the award amount alongwith entire accrued interest on total principle amount be deposited in the name of petitioner no.1, widow of deceased in the form of FDR with a liberty to withdraw monthly interest through savings bank account. Remaining 25% of the principal amount of the award is to be distributed equally amongst petitioners no.2, 3, 4 & 5 as well as respondent 9 no.4 in the form of FDR for five years with State Bank of India, Rohini District Courts, Delhi, with the liberty to withdraw monthly interest through savings bank account. It is made clear that none of FDRs shall be encashed without permission of the court. No loan or advance shall be given on these FDRs except with prior permission of court. Respondent no.3 insurance company is directed to prepare the separate cheques of the compensation amount as per above order. Insurance company is directed to make a payment of Rs.70,000/- by way of cheque in favour of counsel for the petitioner Sh. Yashbir Thakur, Adv.-Enrl. no.D-302/85 & Rs. 30,000/- to Sh. Santosh Kumar, Adv., Enrl. No.D-1201/95 as well as Rs.1500/- out of pocket expenses, as per judgment of Hon'ble High Court in case titled Sat Prakash Vs Jagdish reported in II (2010) ACC 194 passed by justice J.R. Midha.
Respondent no.3 insurance company is directed to prepare the separate cheques of the compensation amount as per above order. Copy of this judgment be given to petitioners and counsel for respondent no.3 insurance company for compliance. File be consigned to record room.
Announced in the open (D.K. MALHOTRA)
Court on 29.05.2012 JUDGE, MACT (OUTER-II)
DELHI