Delhi District Court
Urmila W/O Late Sh. Akhilesh vs Umar Farukh S/O Sh. Yaseen on 23 May, 2015
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IN THE COURT OF MR.RAJENDER KUMAR
SHASTRI: PO: MACT(NORTH): ROHINI: DELHI
Suit No.1195/09
1. Urmila W/o Late Sh. Akhilesh
2. Anta Bhuia S/o Sh. Karma Bhuiya
3. Bhagia Devi W/o Sh.Anta Karma Bhuiya
All R/o House No. 12, Hantar Ganj
Gaon Daha , P.O. Kobna,
District Chatra825401.
.......Petitioners
VERSUS
1.Umar Farukh S/o Sh. Yaseen
r/o Village Teju Gheda
PS Chapar District Muzafer Nagar, UP.
Also at:
73,Boundary Road,
Opposite Telephone Exchange
Meerut, U.P. 250001.
2. Udai Veer Singh S/o Sh. Mahaveer Singh
R/o 73, Boundary Road,
Opposite Telephone Exchange,
Meerut, U.P.
3. Royal Sundaram Allianz Insurance Co. Ltd.
605, 6th Floor, Ashoka Estate, Barakhamba Road,
Connaught Place, New Delhi110001.
4. Raj Kumar S/o Sh. Balwant Singh
R/o 472, Lok Vihar, Shiv Vihar,
Delhi94.
5. Yogender Pal Singh
S/o Sh. Babu Singh
R/o D6, 3rd Floor Commercial Complex
Suit No. 1195/09 Urmilla Vs. Umar Farukh & Ors.
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Ranjit Nagar, Delhi110008.
6. Bajaj Allianz General Insurance Company Ltd.
201/201A,2nd Floor, ITL Twin Tower,
Netaji Subhash Place,
Pitampura, New Delhi.
Respondents.
Present: Ms. Nidhi Vashisht Ld. Proxy for petitioner.
Mr. Shailender Rai Advocate for respondent no. 6. Mr. Bhaskar Tiwari,Ld. Counsel for insurance company i.e. Royal Sundaram Allianz Insurance Company.
DATE OF INSTITUTION : 27.10.2009
JUDGMENT RESERVED ON : 19.05.2015
DATE OF JUDGMENT : 23.05.2015
AWARD
1. One Akhilesh S/o Anta Bhuiya and Mukesh Goyanka died in a vehicular accident in the intervening night of 9/1004.09. This is a petition U/s 166 &140 of The Motor Vehicle's Act, 1988 filed by wife, father and mother of said Akhilesh, seeking compensation.
2. As per case of petitioners, in the night intervening 9th and 10th April 2009, victim Sh. Akhilesh was going to Haridwar in a Tempo Traveler No. DLIVA6149. When he reached near front Choki Begraj Pur, G.T.Road, PS Mansurpur, District Muzafar Nagar, U.P., a truck having registration no. UP15W9861 came from Muzafar Nagar side being driven on a very high speed, rashly and negligently. It hit aforesaid tempo in which victim was travelling. Due to collision, tempo traveler lost its balance and got turtled. Sh. Akhilesh suffered serious Suit No. 1195/09 Urmilla Vs. Umar Farukh & Ors. 3
injuries. He was taken to Begraj Pur Medical College, U.P. but succumbed to injuries and died in that hospital.
3. Contending that said accident was caused due to rash and negligent driving of Truck bearing no. UP15W9861 by respondent no. 1( Umar Farukh). Offending vehicle was owned by respondent no. 2 (Udai Veer Singh) and insured with respondent no. 3 ( Royal Sundaram Allianze Insurance Company Ltd.) or due to rash and negligent driving of Sh. Raj Kumar ( driver) of said Tempo NO. DLIVA6149 which was owned by respondent no. 5 ( Yogender Pal Singh) and insured with respondent no. 6 ( Bajaj Allianz General Insurance Company) petitioners claimed a sum of Rs. 20 lakhs from all these respondents, as compensation, alongwith interest, from day of filing this petition, till realisation of amount.
4. Respondents contested the claim by filing written statements. Respondents no. 1 & 2 denied their truck no. UP15W9861 having been involved in any such accident. Even otherwise, according to them, said truck was duly insured with Royal Sundaram Allianz General Insurance Company i.e. respondent no.
3. It is the latter i.e. insurance company which was liable to pay compensation.
5. As per respondent no. 3, driver of offending vehicle was not having any valid driving licence. Moreover, said accident occurred due to negligence of deceased or deceased had a Suit No. 1195/09 Urmilla Vs. Umar Farukh & Ors. 4
contributory factor or participated in negligence, which resulted in accident in question.
6. According to respondent no. 5 and 6, said accident was caused due to rash and negligent driving of Truck No. UP15W9861 and not due to rash and negligent driving of Tempo No. DLIVA6149 owned by respondent no. 2 and insured with respondent no. 3 and hence, none from them was liable to pay any compensation.
7. On the basis of pleadings of parties, following issues were framed, on 17.07.2012:
(i) Whether deceased Akhilesh received fatal injuries in the motor vehicle accident occurred on 09/10.04.09 at about 2 a.m. in front Choki Begraj Pur, G.T. Road,PS Mansur Pur, District Muzafar Nagar, UP within the jurisdiction of PS Mansurpur due to rash and negligent driving of R1 of vehicle no. UP15W9861? OPP.
(ii)Whether the petitioners are entitled to compensation as prayed for, if so, to what extent and from whom of the respondents? OPP
(iii) Relief.
8. LRs of deceased Mukesh Goyanka also filed a claim petition i.e. 1195/09. Both these petitions were clubbed together for the purpose of evidence.
9. In order to prove their claim, petitioners examined Smt. Amita Goyanka (Petitioner no. 1) as PW1, Ms. Urmilla as Suit No. 1195/09 Urmilla Vs. Umar Farukh & Ors. 5
PW2, Sh. Mantu Kumar as PW3 and Anta Bhuiya as PW4. Respondent no. 5( Yogender Pal Singh) examined himself as R5W1. None other respondents opted to lead any evidence.
10. I heard ld. counsels appearing on behalf of parties. My findings issuewise are as under:
ISSUE NO. 1
11. Petitioner (Urmila)in her affidavit filed in evidence (Ex.PW2/1) reiterated facts of her case. Sh. Mantu Kumar (PW3) is stated to be an eye witness of accident. It is sworn on oath, the latter in his affidavit (Ex.PW3/A) that in the intervening night of 09/10.04.09, the deceased was going to Haridwar from Delhi by Tempo Traveler bearing no. DLIVA6149. He ( PW3) was in other vehicle i.e. Innova bearing no. DLIYA6149 which was following aforesaid tempo. When they reached near front if Choki Begraj Pur, G.T. Road, PS Mujaffar Nagar, U.P, a truck bearing no.UP15W9861 came from Mujjafarpur side. It was being driven on a very high speed, rashly and negligently and hit the Tempo in which the victim ( Akhilesh) was travelling. Due to collision, tempo traveler lost his balance and got turtled. All passengers of that tempo suffered serious injuries. The injured i.e. Akhilesh, Raj Kumar (driver) and Guide (Mukesh Goyanka) and all other passengers were taken to Begraj Pur Medical College, U.P. Where Akhilesh , Raj Kumar driver and Guide Mukesh Goyanka succumbed to injuries and died. Driver of said Innova Suit No. 1195/09 Urmilla Vs. Umar Farukh & Ors. 6
gave information to his employer i.e. owner of said vehicle. Police came at spot and took the injured to hospital.
12. It is contended by ld. Counsel for respondent no. 3 that said accident took place due to rash and negligent of both of drivers i.e. driver of tempo NO. DLIVA6149 and of truck no. UP15W9861. All this is evident from site plan put on file prepared by IO of the case, which shows that both of said vehicles dashed against each other in the middle of road.
13. On the other hand, as per ld. Counsel for petitioner, it was truck no. UP15W9861 which was being driven rashly, negligently and on very high speed. It hit tempo traveler. All this is proved from the statement of Sh. Mantu Kumar PW3, who was an eye witness of accident. Ld. Counsel also pointed out that after investigation of case, police indicted respondent no. 1 for rash and negligent driving and not driver of Tempo Traveller No. DL IVA6149. Copy of FIR etc. verify this fact.
14. As per ld. Counsel for respondent no. 3 , said Sh. Mantu Kumar is not a reliable witness. He was not an eye witness of accident. Otherwise, IO of case would have examined him, if he was present at spot, but he was not examined by the IO. According to Sh. Mantu Kumar, information about accident was given to the owner of Innova vehicle by its driver and not by him ( Sh. Mantu Kumar). All this shows that Mantu Kumar was an arranged witness.
Suit No. 1195/09 Urmilla Vs. Umar Farukh & Ors. 7
15. True, even as per said Sh. Mantu Kumar ( PW3), it was driver of Innova Car who gave information about the accident to his employer. It is also not disputed that Sh. Mantu Kumar was not examined by IO of case, which was registered about that accident. It is clarified by Sh. Mantu Kumar(PW3) himself in his affidavit that after giving information to his employer, driver of Innova left place of accident for onward journey, as the passengers insisted him to do so. Trite it to say that according to Sh. Mantu Kumar ( PW3), he was travelling in same Innova. In such a circumstance, it is not surprising that Sh. Mantu Kumar had no option but to leave the spot for onward journey, alongwith the passengers, Even otherwise, police had already arrived at spot and took the injured to the hospital. Simply to say that Sh. Mantu Kumar did not give information to the owner of Innova, rather, it was given by the driver, is no reason to disbelieve Sh. Mantu Kumar claiming himself to be an eye witness of accident. No contradiction appeared in his testimony, despite being cross examined by ld. Counsel for respondent no. 3, on behalf of latter and on behalf of other respondents. I have no reason to disbelieve him.
16. So far as the fact that driver of both of said vehicles were negligent equally, is concerned, if deposition of Sh. Mantu Kumar is taken as true, after being hit by Truck NO.UP15 W9861, Tempo traveler lost its balance and got turtled. Suit No. 1195/09 Urmilla Vs. Umar Farukh & Ors. 8
Apparently, a tempo traveler is a lighter vehicle than a truck. There is no reason to disbelieve said averments of Sh. Mantu Kumar. Even if both of these vehicles are shown in the middle of road by IO in site plan, same is not enough to prove that both of said vehicles were in the middle of road before collusion. Apart from said fact, there is no other evidence to establish that driver of tempo traveler was also negligent in his driving. On the other hand, from the statement of Sh. Mantu Kumar (PW3) and also from report of police, it is established that said accident took place due to rash and negligent driving of truck No. UP15W9861 by respondent no. 1. There is no denial that Sh. Akhilesh died due to injuries suffered in this accident. Even otherwise, same is well proved from the statement of PW2( wife of deceased) of Sh. Mantu Kumar (PW3) as well as medical record of said victim put on file. This issue is thus decided in favour of petitioners and against the respondents.
ISSUE NO. 2:
17. As discussed above, accident in question was caused due to rash and negligent driving of respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3 and again that Sh. Akhilesh died in that accident having suffered injuries . The petitioners are none but wife, father, and mother of said Akhilesh. The petitioners are thus well within their rights to claim compensation.
Suit No. 1195/09 Urmilla Vs. Umar Farukh & Ors. 9
18. According to Mrs. Urmilla wife of deceased ( PW2), her husband was working as Assistant for the tourists at the time of accident, He was earning Rs. 8,000/ per month. He was responsible for management of all family affairs.
19. There is no evidence except deposition of Urmila( PW2) to verify that victim Akhilesh was earning Rs. 8,000/ per month. Even if, income of deceased is taken to be wages of an unskilled labourer. Same were Rs.3934/ at the time, when said accident took place. This Tribunal can take notice of the fact that perhaps due to inflation or devaluation of rupee, minimum wages of workers are increasing constantly. As mentioned above, at the time of accident in question, minimum wage of unskilled labourer was Rs. 3934/ per month which was increased to Rs. 3,953/ w.e.f. 01.08.09, to Rs. 5,278/ w.e.f. 01.02.10 and again to Rs. 6,084/ from 01.02.11 and now it is Rs. 9,048/ w.e.f. 01.04.2015. In this way, minimum wages of unskilled labourer have been increased more than 2 and ½ times, during this period of about 6 years In such a circumstances, in my opinion, it will not be proper to calculate loss of earning of victim simply by taking minimum wage of unskilled labourer at the time of accident. Taking an addition of 50 % per month, income of deceased can be taken to Rs. 5,901/ ( 3,934+1,967) per month. Even if, it is presumed that deceased would have spent 1/3rd of his income, as his personal expenses (keeping in view 3 dependent upon him), net monthly income comes to Rs. 3,934/. Deceased being aged 24 years, multiplier of 18 is applied. Counting in this way, loss of income comes Suit No. 1195/09 Urmilla Vs. Umar Farukh & Ors. 10
to Rs. 3,934 x 12x18= Rs. 8,49,744/.
20. Apart from loss of income mentioned above, each of petitioners is allowed a sum of Rs. 1 lakh for love and affection towards the deceased. Rs. 25,000/ as funeral expenses, Rs. 10,000/ as loss of estate and Rs. 20,000/ as loss of consortium to petitioner no. 1, making a total sum of Rs. 12,04,744 , detail of which is given as under:
1. Loss of dependency: Rs. 8,49,744/
2. Loss of love & affection:
(Rs. 1 lakh each to petitioners no. 1 to 3)Rs. 3,00,000/
3. Funeral expenses: Rs. 25,000/
4. Loss of estate Rs. 10,000/
5. Loss of consortium (to petitioner no.1) Rs. 20,000/ Total compensation Rs.12,04,744/
21. As mentioned above, it is not in dispute that offending vehicle was duly insured with respondent no. 3/Royal Sundaram Allianz Insurance Company, same is held liable to pay compensation. Issue no. 2 is thus decided in favour of petitioners and against the respondents.
RELIEF:
22. Petition in hands is allowed. Respondent no. 3 is directed to pay a sum of Rs.12,04,744/ to the petitioners as compensation within 30 days from today alongwith interest @ 9% per annum from the date of filing of this petition till realisation of amount.
20. Out of this amount, 50% and Rs. 20,000/ ( loss of Suit No. 1195/09 Urmilla Vs. Umar Farukh & Ors. 11
consortium) be paid to petitioner no. 1 ( widow). Remaining amount be divided equally between petitioners no. 2 & 3 i.e. parents. As regards the shares of petitioners no. 1 ( widow), 50 % out of it, be invested in fixed deposits of nationalised bank for two years. However, no need to keep shares of petitioners no. 2 & 3 in FDRs, same being old persons.
File be consigned to record room.
ANNOUNCED IN THE OPEN (RAJENDER KUMAR SHASTRI) Court on 23.05.2015 PO,MACT NORTH,ROHINI, DELHI Suit No. 1195/09 Urmilla Vs. Umar Farukh & Ors. 12 Suit NO. 1194/09 23.05.2015:
Present: Ms. Nidhi Vashisht Ld. Proxy for petitioner.
Mr. Shailender Rai Advocate for respondent no. 6. Mr. Bhaskar Tiwari,Ld. Counsel for insurance company i.e. Royal Sundaram Allianz Insurance Company. Vide separate Judgment, dictated and announced in open court today, petition is disposed of .
File be consigned to Record Room.
Copy of this order be given dasti to both the parties, free of costs.
PO,MACT1 (N),ROHINI, DELHI/23.05.2015.
Suit No. 1195/09 Urmilla Vs. Umar Farukh & Ors.