Delhi District Court
Shanti W/O Sh. Daya Ram vs Shyam Dutt Pant S/O Sh. Narpati Pant on 30 August, 2013
IN THE COURT OF MS. REKHA RANI : JUDGE : MACT :
DELHI
MACT No. : 1132/08
UNIQUE ID NO. :02404C01449022008
1. Shanti W/o Sh. Daya Ram
(Mother of deceased)
2. Daya Ram S/o Late Sh. Nihor
(Father of deceased)
3. Vijay Pratap S/o Sh. Daya Ram
(Major Brother of deceased)
R/o H.No. 118, Mohalla Kekarachor,
Village Rampur Duvayala,
District Sultanpur, U.P.
Also at: Plot No.179, Vipin Garden, Kakrola Mor,
Uttam Nagar, New Delhi110059.
........Petitioners
Versus
1. Shyam Dutt Pant S/o Sh. Narpati Pant,
R/o Vill. Khali Gad, PS & District Baitadi,
Nepal. (Driver)
nd
2 Add: Malik Transport, Near Maruti Company,
Gurgaon, Haryana.
rd
3 Addl: A2/26, Janakpuri, New Delhi110058.
MACT 1132/08 Shanti v. Shyam Dutt Pant 1/20
2. M/s Yashomala Logistic,
A2/26, Janakpuri, New Delhi110058. (Owner)
3. The Oriental Insurance Company Ltd.
th
10 Floor, Hansalya Building, Barakhamba Road,
Connaught Place, New Delhi110001. ......Ins. Co.
.......Respondents
DATE OF INSTITUTION : 18.08.2008 DATE OF RESERVING ORDER : 26.08.2013 DATE OF PRONOUNCEMENT : 30.08.2013 A W A R D
1. Ram Pratap Pal died in a road side accident. His parents and brother have filed present petition under section 140 & 166 of the Motor Vehicles Act (in short the Act) claiming an amount of Rs.30 lacs as compensation with interest @ 12% per annum pleading that On 24.05.2008, at about 9:40 p.m, Ram Pratap Pal (in short the deceased) was going to Gurgaon, Sector14 from Paschim Vihar, Delhi on a motorcycle bearing registration No. UP64D1561, which was being driven by Sachin Kumar Gupta and the deceased was pillion rider. The motorcycle was driving slowly, and on correct side of the road. When MACT 1132/08 Shanti v. Shyam Dutt Pant 2/20 they reached at Mor Sector17/18, Gurgaon, a Trolla, bearing registration No. HR55A7015 (in short the offending vehicle), which was being driver by Shyam Dutt Pant (in short R1) at high speed, rashly, negligently and without taking necessary precautions, violating the traffic rules and without blowing horn came from opposite direction and hit the motorcycle with a great force as a result of violent impact, motorcycle riders fell down. They were taken to Kalyani Hospital, Pvt. Ltd. Gurgaon, where during the course of treatment Ram Pratap Pal was expired.
The accident took place on account of rash and negligent driving by R1. Deceased was 26 years old and was working as a project manager with Unity Power & Security Technologies Pvt. Ltd., B52, 2nd Floor, DLF, Phase2nd Jakhanda Marg, Gurgaon, at a salary of Rs. 10,000/ per month.
2. The offending vehicle was owned by M/s Yashomala Logistic (in short R2) and was insured with The Oriental Insurance Company Ltd. (in short R3). Compensation is claimed from all the respondents jointly and severely. MACT 1132/08 Shanti v. Shyam Dutt Pant 3/20
3. R1 and R2 filed common written statement. It is pleaded that no accident was caused by R1 while driving the offending vehicle. It is pleaded that petitioners have falsely implicated R1 & R2. It is also stated that driver of the motorcycle was intoxicated and he was negligent in driving the motorcycle. It is also stated that the accident took place with some other vehicle and the driver of an unknown vehicle fled away from the spot and R1 & R2 have been falsely implicated. It is further stated that alleged offending vehicle was insured vide policy No.271900/31/2008/2301 which was valid w.e.f 08.09.2007 to 07.09.2008. It is also stated that R1 possessed driving licence bearing No.30599/TV/Z/2008, issued by Government of Nagaland on 23.01.2008, which was valid at the time of accident. It is also stated that both the motorcycle riders were riding the same without helmets. It is also stated that valid National Permit and fitness certificate were there, which are annexed as annexures R2 & R3.
4. R3 also filed written statement. It is admitted that offending vehicle was insured with it vide policy No. 271900/31/2008/2301 which was valid w.e.f 08.09.2007 to MACT 1132/08 Shanti v. Shyam Dutt Pant 4/20 07.09.2008 in the name of R2. It is however denied that R3 is liable to pay any compensation as it is alleged that no cause of action arose against R1 and R2. It is also stated that there was contributory negligence on the part of driver of the motorcycle.
5. My Ld. Predecessor framed following issues on 05.02.2009. i. Whether on 24.05.2008 at 9:40 p.m at Mor Sector 17/18, Gurgaon, Trolla No. HR55A7015 which was being driven rashly and negligently hit motorcycle No. UP64D1561 on which deceased Ram Pratap Pal was riding and caused his death? OPP ii. Whether petitioners are entitled to compensation as prayed for if so from which of the respondent? OPP iii. Relief.
6. Father of deceased was examined as PW1. Sachin Kumar Gupta, eye witness as PW2 and Suresh Kumar Gupta, Accounts Manager of employer of deceased as PW3.
R3 examined Harjinder Pal Singh, its assistant as R3W1. R1 & R2 did not lead any evidence.
7. I have perused the case file. I have also heard Sh. P.K. MACT 1132/08 Shanti v. Shyam Dutt Pant 5/20 Mishra, Advocate for petitioner, Sh. Pankaj Kumar Dua, Advocate for R1 & R2 and Sh. Lokesh Kumar, Advocate for R3.
Issue No.1 Qua Negligence
8. Sachin Kumar Gupta, the eye witness was examined as PW2. He deposed that on 24.05.2008 at about 9:40 p.m, he was driving the motorcycle bearing registration No. UP64D1561 and the deceased was pillion rider. It is further deposed that when they reached at Mor Sector17/18, Gurgaon, Haryana, the offending vehicle, which was being driven by R1 at high speed rashly and negligently came from opposite direction and hit the motorcycle with great force. Both riders of motorcycle fell down and they were taken to Kalyani Hospital, Pvt. Ltd. Gurgaon and that deceased died during the course of treatment.
The witness was cross examined. In his cross examination he stated that he was driving the motorcycle on left side of the road and he had to go straight. He denied the suggestion that he and the deceased were not wearing helmets. He denied the suggestion that that road was damaged/broken and MACT 1132/08 Shanti v. Shyam Dutt Pant 6/20 therefore he lost his balance and as such accident took place.
9. None of the respondents in their written statement had taken a plea that the road was broken/damaged on account of which the motorcycle rider lost balance and therefore accident took place.
10. It has to be borne in mind that the Act does not stipulate holding a trial for petition preferred under section 166 of the Act. Under Section 168 of the Act, Claims Tribunal holds an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal as held in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943.
11. In Bimla Devi and ors. Vs. Himachal Road Transport Corporation and Ors (2009) 13 SC 530, Hon'ble Supreme Court held that Tribunal has to take a holistic view of the matter and that strict proof of an accident caused by a particular vehicle in a particular manner should not be insisted. It was also observed that claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt MACT 1132/08 Shanti v. Shyam Dutt Pant 7/20 could not have been applied.
12. In National Insurance Company Pvt. Ltd. Vs. Smt. Pushpa Rana & Ors. Decided on 20th December, 2007. Hon'ble Delhi High Court observed that documents in the nature of certified copy of the criminal record of criminal case, pertaining to involvement of the offending vehicle, (ii) criminal record showing completion of investigation of police and issue of charge sheet under Section 279/304A, IPC against the driver, (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased are sufficient to prove negligence of the driver.
13. Petitioners have placed on record certified copies of criminal case. Report under section 173 Cr. PC shows that R1 was prosecuted for having caused the said accident, on statement of Sachin Kumar Gupta, who appeared as PW2 in this case.
14. Ex.P5 is certified copy of MLC of the deceased which shows that deceased was taken to Kalyani Hospital Pvt. Ltd. MACT 1132/08 Shanti v. Shyam Dutt Pant 8/20 Mehrauli Road, Gurgaon with history of road traffic accident and as per his postmortem report he died due to shock caused by polytrauma and the injuries were ante mortem in nature and supposed to cause death in natural course.
15. R1 has alleged in his written statement that accident was caused by some other vehicle which fled from the site of accident and he has been falsely implicated. R1 himself did not appear in the witness box to explain why he was prosecuted by the I.O for having caused the said accident. He has not proved that petitioners or the investigating officer had any enmity with him (R1). He has further not proved that Sachin Kumar Gupta had any previous history of enmity with him to involve him falsely in this case.
16. In view of the judgments cited above and certified copies of criminal case preponderance of probability is that R1 caused the said accident by driving the offending vehicle rashly and negligently, which resulted in causing death of the deceased. This issue is accordingly decided in favour of the petitioners and against the respondents. Issue No.2 Qua Quantum of Compensation MACT 1132/08 Shanti v. Shyam Dutt Pant 9/20
17. PW3 Suresh Kumar Gupta, Accounts Manager stated that deceased was employed as project manager with M/s Unity Power & Security Technologies Pvt. Ltd. B052, 2nd Floor, DLF, Phase2nd, Jakhanda Marg, Gurgaon, w.e.f January, 2008. It is further deposed that he was drawing salary of Rs. 10,000/ p.m inclusive of all benefits. The witness was not cross examined. Hence the salary of the deceased is taken as Rs. 10,000/ per month.
18. During the course of arguments, learned counsel for R3 handed over copy of mark sheet of the deceased which he stated has been verified by insurance. The same is Ex.C. Learned counsel for petitioners also admitted the same to be correct. As per Ex.C date of birth of deceased is 15.10.1979 and the accident took place on 24.05.2008, so he was 29 years of age.
19. In Rajesh & Others v. Rajbir Singh & Others 2013(6) SCALE 563, deceased was around 33 years of age at the time of accident. He was survived by his widow and minor children. He was working as a clerk in a Government School. Claims Tribunal awarded total compensation of Rs. MACT 1132/08 Shanti v. Shyam Dutt Pant 10/20 8,96,500/. On appeal Hon'ble High Court enhanced the total compensation to Rs. 10,17,000/. On further appeal to Hon'ble Apex Court total compensation was enhanced to Rs. 22,81,320/. Hon'ble Apex Court observed that compensation under section 168 has to be "just, fair and equitable" to make good the loss suffered as a result of the wrong as far as money can do.
20. Hon'ble Apex Court referred to Santosh Devi v. National Insurance Company Ltd. & Others 2012(4) SCALE 559 in which it was observed that even in absence of any evidence as to future prospects and increase of 30% in the income has to be provided where the victim had fixed income or was a self employed person. Relevant extract of the order is as follows: "18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verm's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is selfemployed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is selfemployed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period MACT 1132/08 Shanti v. Shyam Dutt Pant 11/20 of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."
21. However to make compensation just fair and equitable Hon'ble Apex Court observed:
11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.
12. In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those MACT 1132/08 Shanti v. Shyam Dutt Pant 12/20 selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter".
Accordingly 50% addition is to be made as deceased was less than 29 years.
Deduction towards personal and living expenses
22. As per Sarla Verma & Ors. v. DTC & Anr. Civill Appeal No. 3483 of 2008 where the deceased was bachelor and claimant his parents 50% is deducted as personal and living expenses.
Multiplier
23. As per identity card, issued by Election Commission of India, Ex.PW1/13 mother of deceased (petitioner No.1) was 47 years old on 01.01.2007 and vide Ex.PW1/12 father of deceased (petitioner No.2) was 46 years old as on 01.01.2007 As such multiplier of 13 is applicable as per Sarla Verma (supra).
MACT 1132/08 Shanti v. Shyam Dutt Pant 13/20
Calculation
Salary Rs.10,000/
Addition of 50% towards
inflation Rs.10,000/ + 5,000/ = 15,000/
50% deduction towards
personal and living expenses Rs.15,000 7500= 7500/ The loss of dependency comes to Rs.11,70,000/ (Rs. 7500x12x13)
24. Regarding compensation payable towards funeral expenses it was further observed in Rajesh & Ors (Supra) "We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head 'Funeral Expenses". The 'Price Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least MACT 1132/08 Shanti v. Shyam Dutt Pant 14/20 an amount of Rs. 25,000/."
In view of the above Rs. 25,000/ is granted towards funeral expenses.
25. Regarding compensation payable on account of loss of love and affection para 9 of the judgment in ICICI Lombard General Insurance Company Ltd. V. Hari Singh & Ors. MAC APP 122/2011 is reproduced below :
"Loss of love and affection can never be measured in terms of money. Thus, uniformity has to be adopted by the Courts while granting nonpecuniary damages. The Supreme Court in Sunil Sharma V. Bachitar Singh (2011) II SCC 425 and in Baby Radhika Gupta V. Oriental Insurance Company Limited (2009) 17 SCC 627 granted Rs.25,000/ (in total to all the claimants) only under the head of loss of love and affection. This, I would reduce the compensation under this head to Rs.25,000/ only."
Accordingly, compensation of Rs.25,000/ is granted under the head of loss of love and affection. Rs. 10,000/ is granted towards loss of estate. Thus, the over all compensation comes to Rs. (11,70,000/ + Rs. 60,000/)= Rs. 12,30,000/ and after deduction of interim award it comes to Rs.11,80,000/.
MACT 1132/08 Shanti v. Shyam Dutt Pant 15/20
26. R3 has examined Harjinder Pal Singh, its assistant as R3W1, who deposed that R3 issued notice under Order 12 Rule 8 CPC to R1 & R2 to produce permit and driving licence. It is further stated that in absence of permit and driving licence, R3 is not liable to pay any compensation to the petitioners.
27. R1 & R2 filed detailed reply. It is pleaded in para 7 of the reply:
"The driving licence of the respondent No.1 bears No. 30599/TV/Z/2008 issued by Government of Nagaland on 23.01.2008 and was valid at the time of accident which was renewed from time to time. The copy of the driving licence of the respondent No.1 is annexed herewith as Annexure-R1."
Regarding the permit, it is pleaded in para 8 that R1 had valid National Permit valid from 06.09.2007 to 03.09.2012. Copy where of was annexed as R2.
28. Ramakrishana Reddy Vs. Manager, HMT Ltd., 2003 ACJ 105, it was observed as under :
"We may also at this stage refer to the pernicious habit of some branches of insurance companies in filling stereotyped written statements denying all and MACT 1132/08 Shanti v. Shyam Dutt Pant 16/20 everything. They routinely deny the insurance, then alternatively plead that even if there was an insurance, there was a breach of terms of the policy, that driver did not have a valid driving licence, and lastly there was no negligence on the part of driver of the insured vehicle. They do not bother to verify whether the insurance policy covered the risk or not and whether driver had a licence or not. We recognize that insurers are sometime handicapped for want of full information, while giving instructions to their counsel and, therefore, the objections may be general in nature. We are also conscious that we cannot frown upon a party taking all permissible defences. But, applications for motor accident claims are not to be treated by insurers as normal private adversary litigation, their technical contentions can abound in pleadings and the sole intention is winning the lis. Under the policies of insurance, the insurers discharge statutory obligations towards third parties. They should do so keeping in view the objection and spirit of the Act, and the position of hapless victims of motor accidents. Insurers should balance their concerned to safeguard its financial interest with their obligations as instruments of social justice, MACT 1132/08 Shanti v. Shyam Dutt Pant 17/20 under the Motor Vehicles Act".
"The claimants are not litigants by choice, but are constrained to approach the Tribunal, because of death of the bread winner or injury to self, and because the owner and insurer of the vehicle involved, fail to pay the compensation. The insurer should bear in mind that the claimants are also handicapped in obtaining particulars of the insurance policy held by owner or driving licence held by the driver of the vehicle, and they solely depend upon the police for these particulars. The insurer should, therefore, verify whether there was any insurance policy or not, whether the insured was covered by insurance policy in regard to the claim or not, and whether the driver had a licence or not before filing its statement of objections and narrow down the area of controversy. If the insurers were to file " play it safe' written statements, without verifying these aspects and mechanically denying all petition averments, the trial gets delayed and the claimants are put to misery and injustly kept away from the direly needed compensation. It is time that insurers get rid of "deny everything await the award syndrome" and become responsible and responsive opponents in motor accident claims. We make it clear that the above MACT 1132/08 Shanti v. Shyam Dutt Pant 18/20 observations are intended only for those officers of insurance companies who refuse to recognise their statutory obligations to third parties, under the insurance policies issued to the insured".
29. Annexure R1 and R2 are on record. R3 did not bother to have these documents verified from concerned authorities and prove their reports.
30. R3 is accordingly directed to deposit within 30 days from today the awarded amount of Rs. 11,80,000/ with interest at the rate of 7.5 % per annum from the date of filing of claim petition till notice of deposit of award amount to be given by R3 to petitioners.
31. I have heard parents of deceased regarding their financial needs. In view of the submissions made and further in view of the judgment in General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631 following arrangements are hereby ordered:
32. Petitioner No.3 is major brother of deceased. Rs. 25,000/ may be released to him. Rs. 4 lac with proportionate interest be given to father of deceased (petitioner No.2) out of which MACT 1132/08 Shanti v. Shyam Dutt Pant 19/20 Rs.1 with proportionate interest be released to him and remaining amount with proportionate interest be kept in FDR in his name for a period of 2 years. Remaining amount with proportionate interest be given to mother of deceased (petitioner No.1) out of which Rs. 1 lac with proportionate interest be released to her and remaining amount with proportionate interest be kept in FDR in her name for a period of five years.
33. The interest on the aforesaid fixed deposit shall be paid monthly by automatic credit of interest in their Saving Account.
34. The petitioners shall not have any facility of loan or advance on the FDR. However, in case of emergent need, they may approach this Tribunal for premature encashment of FDR.
35. The petition is accordingly disposed of. File be consigned to record room. Copy of order be given to parties for compliance.
Announced in the open Court Judge MACT (N/W) today i.e. 30.08.2013 Rohini Courts, Delhi MACT 1132/08 Shanti v. Shyam Dutt Pant 20/20