Delhi District Court
Smt Guddi And Ors vs Brijesh Kumar And Anr on 23 September, 2023
IN THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH WEST, ROHINI COURTS, DELHI
PRESIDED BY SH. GAGANDEEP JINDAL,
==============================================
UID No. / CNR No. DLNW01-003254-2021 MACT CASE No. 203/ 2021 FIR No. 314/ 20, PS Aman Vihar In the matter of :
Deceased Sh. Munna Lal S/o Late Sh. Krishan, Through his LRs:
1. Smt. Guddi (Wife of deceased) W/o Late Sh. Munna Lal, R/o H. No. D-46, Gali No. 1, Prem Nagar-3, Kirari, Delhi
2. Sh. Monu (Son of deceased) S/o Late Sh. Munna Lal, R/o H. No. D-46, Gali No. 1, Prem Nagar-3, Kirari, Delhi
3. Sh. Sonu (Son of deceased) S/o Late Sh. Munna Lal, R/o H. No. D-46, Gali No. 1, Prem Nagar-3, Kirari, Delhi
4. Smt. Premwati (Mother of deceased) W/o Shri Krishna R/o H. No. D-46, Gali No. 1, Prem Nagar-3, Kirari, Delhi
5. Ms. Poonam (Daughter of deceased) D/o Sh. Munna Lal R/o H. No. D-46, Gali No. 1, Prem Nagar-3, Kirari, Delhi .....Petitioners Vs. MACT Case No. 203/2021 (FIR no. 314/2020) Smt. Guddi & Ors. v. Brijesh Kumar & Anr.
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1. Sh. Brijesh Kumar S/o Late Sh. Krishan R/o H. No. D-46, Gali No. 1, Prem Nagar-3, Kirari, Delhi.
....Driver/R1
2. Smt. Pushpa W/o Late Sh. Surender Singh, R/o H. No. 320, Khubram Park, Prem Nagar, Delhi.
....Owner/R2
Date of institution of the DAR : 09.04.2021
Date of final Arguments : 24.07.2023
Date of Decision : 25.09.2023
Appearance (s) : Sh. R. N. Singh, Ld. Counsel for the petitioner.
R1 and R2 already ex-parte.
J U D G M E NT /AWAR D
1. Vide this judgment/award, I shall dispose off the present Detailed Accident Report (in short, the DAR) filed by IO ASI Bhagwan Sahai with regard to FIR No. 314/2020, PS Aman Vihar.
FACTUAL POSITION AND PLEADINGS
2. The brief facts relevant for disposal of the present petition are that on 12.07.2020, at about 8:30 PM, Near Furniture Market, Sultanpuri Road, Kirari, Delhi, the deceased Munna Lal was going on his cycle, he was hit by a Tempo bearing no. DL-1R-5606 (in short "the offending vehicle") from behind which was being driven by respondent no. 1. Due to hit by the tempo, the deceased fell down on the road and sustained injuries on his head. Respondent no. 1 MACT Case No. 203/2021 (FIR no. 314/2020) Smt. Guddi & Ors. v. Brijesh Kumar & Anr.
Page no. 2 of 14 took deceased to Sanjay Gandhi Memorial Hospital in his tempo. Respondent no. 2 is the registered owner of the offending vehicle. The offending vehicle was not insured at the time of accident. An FIR No. 314/2020, PS Aman Vihar U/s 279/304A IPC was registered in this regard.
3. No Written statement has been filed on behalf of respondent no.1 and respondent no.2. They both were proceeded ex-parte vide order dated 30.11.2021.
4. No issues were framed as the respondents failed to file their written statement.
PETITIONER'S EVIDENCE
5. In order to prove their case, petitioners have examined petitioner no. 1 as PW-1, who has deposed in terms of her affidavit of evidence Ex. P1 and has relied on following documents :
i. Copy of Adhaar Card of LRs of deceased Sh. Munna Lal as Ex.PW-1/1 to Ex. PW-1/5.
ii. Death Certificate of deceased as Ex.PW-1/6.
6. Petitioners have also examined Sh. Amit S/o Sunil Kumar as PW2 who tendered his evidence by way of affidavit Ex. P2. PW2 is the eye-witness of the accident. He deposed how, when and where the accident took place.
7. No other witness has been examined on behalf of petitioners.
MACT Case No. 203/2021 (FIR no. 314/2020) Smt. Guddi & Ors. v. Brijesh Kumar & Anr.
Page no. 3 of 14 RESPONDENT'S EVIDENCE:
8. No evidence has been lead by the respondents in their defence.
9. I have heard ld. Counsel for the petitioner and have gone through the testimony o f t h e w i t n e s s e s , the pleadings and the documents.
10. It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a civil court and in civil matters the facts are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this burden is infact even lesser than that in a civil case. Reference in this regard can be made to the propositions of law laid down by the Hon'ble Supreme Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and others, reported in (2009) 13 SC 530, which were reiterated in the subsequent judgment in the case of Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303.
11. In order to prove rash and negligent driving of respondent no.
MACT Case No. 203/2021 (FIR no. 314/2020) Smt. Guddi & Ors. v. Brijesh Kumar & Anr.
Page no. 4 of 14 1, Petitioners have examined PW-2 who deposed that on 12.07.2020, at about 7:30-8:00 PM, he was coming from duty. When he reached at Ganesh Dharam Kanta, Furniture Market, Kirari, Delhi, the offending vehicle from back side which was being driven by the driver in most rash and negligent manner and hit the cycle of deceased from behind. The deceased fell down on the road and sustained grievous injuries. The deceased was taken to Sanjay Gandhi Hospital by the driver of the offending vehicle.
12. Deceased after accident was taken to SGM Hospital, Delhi where he was declared dead due to head injuries. The testimony of PW-2 against the respondent no.1 is corroborated by the documentary evidence that respondent no.1 was present at the spot and driving the offending vehicle at the time of accident. Therefore, the case does not warrant any other best evidence. Keeping in view the facts & evidence produced by the petitioner, it has proved on record that the said accident has taken place due to the rash and negligent driving of the offending vehicle being driven by respondent no.1, as a result of which, the petitioner sustained injuries and succumbed to the injuries.
13. The FIR has been lodged against the respondent no.1 and he has faced criminal charges of causing death and injuries by rash and negligent driving in the said accident.
14. Besides the above, R-1 himself was the best witness who MACT Case No. 203/2021 (FIR no. 314/2020) Smt. Guddi & Ors. v. Brijesh Kumar & Anr.
Page no. 5 of 14 could have stepped into the witness box to challenge the depositions being made by PW-2 regarding the above accident and its manner etc., but he has not done so. Therefore, an adverse inference on this aspect is also required to be drawn against the respondents in view of the law laid down in case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3) AD (Delhi) 310.
15. In view of the aforesaid discussion and the evidence which has come on record, it is held that the rashness and negligence on the part of driver of the offending vehicle, which is clearly visible and as such, was responsible not only for this accident, but also for everything that followed thereafter. Accordingly issue no.1 is decided in favour of the petitioner and against the respondents.
16. As this Tribunal has already held that R1 was responsible for the death of the deceased due to his neglect and default in driving the offending vehicle at the relevant time. Therefore, the petitioners have become entitled to be compensated for death of deceased in the above accident, but computation of compensation and liability to pay the same are required to be decided.
COMPENSATION
17. Basically only three facts need to be established by the claimants for assessing compensation in the case of death :
(a) age of the deceased;
(b) income of the deceased; and the MACT Case No. 203/2021 (FIR no. 314/2020) Smt. Guddi & Ors. v. Brijesh Kumar & Anr.
Page no. 6 of 14
(c) the number of dependents.
18. The issues to be determined by the Tribunal to arrive at the loss of dependency are
(i) additions/deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and
(iii) the multiplier to be applied with reference of the age of the deceased.
19. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. In this regard, though not quoted, reliance is placed upon, Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. (2009) 6 SCC 121.
20. The claimant/petitioner no.1 is the wife, petitioner no.2 and petitioner no.3 are sons, petitioner no. 4 is the mother and petitioner no. 5 is the daughter of deceased. PW1/ Wife of deceased deposed that the Deceased was aged about 52 years and was having good health and physique. The petitioners have suffered pecuniary loss due to untimely death of deceased in road accident but there is no document on record to prove the income of the deceased. Therefore, the income of the deceased, as on the date of the accident, has been treated as that of "unskilled person". Therefore, on the date of accident i.e 12.07.2020, the minimum wages of unskilled labour in MACT Case No. 203/2021 (FIR no. 314/2020) Smt. Guddi & Ors. v. Brijesh Kumar & Anr.
Page no. 7 of 14 Delhi is Rs. 14,842/- per month.
21. The ld. Counsel for the petitioners further argued that future prospects should also be awarded to the petitioners as per law. Ld. Counsel for the petitioners has submitted that the deceased was the sole earning member of the family and all the petitioners/claimants were dependent upon him for their livelihood. The ld. Counsel for the petitioners further argued that future prospects should also be awarded to the petitioners as per law.
22. Accordingly, on the basis of Aadhar Card Ex. PW1/2, the year of birth of deceased, was 1967. Hence the age of deceased is taken as 52 years as on the date of accident. Hence, the multiplier of "11" would be applicable in view of pronouncement made in case titled as Sarla Verma (supra).
23. Considering the fact that deceased was aged about 52 years of age at the time of accident and was not having a permanent job at that time, future prospects @ 10% has to be awarded in favour of petitioners in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as National Insurance Company Ltd. v. Pranay Sethi & Ors., (2017) 16 SCC 680, as well as in view of recent decision of Hon'ble Delhi High Court in appeal Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors, in MAC APP No. 798/2011.
MACT Case No. 203/2021 (FIR no. 314/2020) Smt. Guddi & Ors. v. Brijesh Kumar & Anr.
Page no. 8 of 14
24. The deceased was married and there are five claimants/ dependants upon him. Thus, there are five dependants and there has to be deduction of "one fourth (1/4)", as per the mandate of Sarla Verma (supra). Thus, total loss of dependency would come out as under:
S. Head Amount Remarks
No (Rs.)
.
1 Monthly Income of deceased 14,842/-
(A)
3 Less: Personal expenses of 3,710.5/- (A)/ 4= (B)
deceased @ one fourth (1/4)
(B)
4 Monthly loss of dependency 11,131.5/- [(A)-(B)]=(C)
(C)
5 Annual Loss of dependency 1,33,578/- (C) x 12 = (D)
(D)
6 Multiplier @ 11 14,69,358/- (D) x
(E) 11(multiplier)
= (E)
7 Add: Future Prospects @ 10% 1,46,935/- (E) X 10%
(E)
Total 16,16,293/-
Rounded Off to: 16,16,300/-
LOSS OF LOVE & AFFECTION
25. After the judgment passed in National Insurance Company Ltd. v. Pranay Sethi & Ors. (supra) and recent judgment titled as New India Assurance Company Limited v. Somwati & Ors., Civil Appeal no. 3093 of 2020 the petitioners are not entitled to be compensated under this head. Further, Hon'ble Delhi High Court in appeal titled as Bajaj Allianz General Insurance Company Ltd. Vs. MACT Case No. 203/2021 (FIR no. 314/2020) Smt. Guddi & Ors. v. Brijesh Kumar & Anr.
Page no. 9 of 14 Pooja & Ors, (supra) has been pleased to observe in para 18 of the judgment that the Constitution Bench decision in Pranay Sethi (supra) does not recognize any other non-pecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
26. In view of the judgment of Hon'ble Supreme Court in case titled as, "New India Assurance Company Limited v. Somwati & Ors.", Civil Appeal No.3093 of 2020, dated 07.09.2020, I am of the considered opinion that the wife, three children and mother of deceased are entitled for payment of Rs. 40,000/- each towards loss of consortium. Consequently, a sum of Rs.2,00,000/- (Rs.40,000/- x
5) is awarded to the petitioners under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
27. PW-1 claimed that she incurred Rs. 2,00,000/- on conveyance and last rites of deceased but no document has been placed on record in this regard. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/- is awarded in favour of petitioners on account of loss of estate and a sum of Rs. 15,000/- is awarded in favour of petitioners on account of funeral expenses. Thus, the total compensation is assessed as under:
MACT Case No. 203/2021 (FIR no. 314/2020) Smt. Guddi & Ors. v. Brijesh Kumar & Anr.
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S. No. Head Amount (Rs.)
1 Loss of dependency 16,16,300/-
2 Loss of Consortium (Rs.40,000 x 6) 2,00,000/-
3 Loss of Estate & Funeral Expenses 30,000/-
(@ 15,000/- each)
TOTAL 18,46,300/-
28. Hence, the petitioners are awarded total compensation of Rs.
18,46,300/- (Rupees Eighteen Lakh Forty Six Thousand and Three Hundred Only).
LIABILITY
29. As per the facts disclosed in the chargesheet, R1 has purchased the offending vehicle from R2 on 16.03.2014. R2 did not lead any evidence to prove that she had sold the offending vehicle to R1 on 16.03.2014. However, in the record of concerned Transport Authority annexed with the chargesheet, R2 is still registered owner of the offending vehicle. Therefore, in view of the law laid down by Hon'ble Apex Court of India in the case of Naveen Kumar Vs. Vijay Kumar and Ors. (2018) 3 SCC 1 that owner within the meaning of Section 2(30) of MV Act is liable to compensate. It has been held as follows:
"13. The consistent thread of reasoning which emerges from the above decisions is that in view of the definition of the expression "owner" in Section 2(30), it is the person in whose name the motor vehicle stands registered who, for the purpose of the Act, would be treated as the "owner".
However, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire MACT Case No. 203/2021 (FIR no. 314/2020) Smt. Guddi & Ors. v. Brijesh Kumar & Anr.
Page no. 11 of 14 purchase, lease of hypothecation, the person in possession of the vehicle under that agreement is treated as the owner. In a situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the Registering Authority as the owner of the vehicle, he would not stand absolved of liability. Parliament has consciously introduced the definition of the expression "owner" in Section 2(30), making a departure from the provisions of Section 2(19) in the earlier 1939 Act. The principle underlying the provisions of Section 2 (30) is that the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trail of successive transfers, which are not registered with Registering Authority. To hold otherwise would be to defeat the salutary object and purpose of the Act. Hence, the interpretation to be placed must facilitate the fulfilment of the object of the law. In the present case, the first respondent was the "owner" of the vehicle involved in the accident within the meaning of Section 2(30). The liability to pay compensation stands fastened upon him. Admittedly, the vehicle was uninsured. The High Court has proceeded upon a misconstruction of the judgments of this Court in Reshma and Purnya Kala Devi.
14. The submission of the petitioner is that a failure to intimate the transfer will only result in a fine under Section 50(3) but will not invalidate the transfer of the vehicle. In T. V. Jose , this Court observed that there can be transfer of title by payment of consideration and delivery of the car. But for the purposes of the Act, the person whose name is reflected in the records of the Registering Authority is the owner. The owner within the meaning of Section 2(30) is liable to compensate. The mandate of the law must be fulfilled.
30. In view of these observations, it is held that respondent No. 1 Driver and Respondent no. 2 being the registered owner of the MACT Case No. 203/2021 (FIR no. 314/2020) Smt. Guddi & Ors. v. Brijesh Kumar & Anr.
Page no. 12 of 14 offending vehicle are jointly and severely liable to pay the compensation to the petitioners.
ISSUE No.3: RELIEF
31. In view of the aforesaid discussion, this tribunal awards compensation of 18,46,300/- (Rupees Eighteen Lakh Forty Six Thousand and Three Hundred Only) alongwith interest @ 9% per annum w.e.f the date of filing of the claim petition, i.e. 08.01.2018 till the date of its realization in favour of petitioners and against the respondent no. 1 and 2.
APPORTIONMENT
32. It is noted that statement of the petitioners namely Smt. Guddi, Monu, Sonu, Smt. Premwati and Ms. Poonam in terms of Clause 26 MCTAP has not been recorded, therefore, the apportionment is withheld.
33. Respondent no. 1 and 2 are directed to deposit the Award amount in the MACT Account No. 40723743243 of this Tribunal with SBI, Rohini Court Branch within 30 days as per above order, failing which they shall be liable to pay interest @ 9% p.a for the period of delay. Copy of the award be given dasti to petitioner/claimant as well as respondent no. 1 and 2.
34. Ahlmad is further directed to comply with the directions passed by the Hon'ble High Court of Delhi in MAC APP No. 10/2021 titled as MACT Case No. 203/2021 (FIR no. 314/2020) Smt. Guddi & Ors. v. Brijesh Kumar & Anr.
Page no. 13 of 14 New India Assurance Company Ltd. Vs. Sangeeta Vaid & Ors., date of decision : 06.01.2021 regarding digitisation of the records.
35. Form V and IVB in terms of MCTAP are annexed herewith as Annexure-A. A separate file be prepared for compliance report by the Nazir and put up the same on 21.10.2023.
File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN COURT
ON 23th DAY OF SEPTEMBER, 2023 Digitally signed
by GAGANDEEP
GAGANDEEP JINDAL
JINDAL Date: 2023.09.23
14:40:08 +0530
(GAGANDEEP JINDAL)
ADJ-1+MACT, NORTH WEST,
ROHINI COURTS, DELHI
MACT Case No. 203/2021 (FIR no. 314/2020) Smt. Guddi & Ors. v. Brijesh Kumar & Anr.
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