Delhi District Court
Naresh Kumar & Ors. vs . Naveen Kumar & Ors. on 26 March, 2021
Naresh Kumar & Ors. vs. Naveen Kumar & Ors.
IN THE COURT OF SH. ATUL KUMAR GARG : PRESIDING OFFICER :
MACT :SOUTH DISTRICT : SAKET COURT: NEW DELHI
Petition No. : 87/17
1) Naresh Kumar
S/o Sh. Hito Das .. Son of deceased
2) Sh. Hito Das
S/o Late Sunder Das ..Husband of deceased
3) Suresh Das
S/o Hito Das ..Son of deceased
4) Meera Devi
D/o Hito Das
W/o Sh. Rajesh Das ..daughter of deceased
All resident of :
A71, Paryavaran Complex
Saidulazaib, IGNOU Road,
New Delhi
Permanent Resident of
Ward no. 10, Kewas Jagir,
Keos Nizamat, Samastipur,
Bihar ..... Petitioners
Versus
1. Naveen Kumar
S/o Sh. Mahavir Singh
R/o VPO Company Bagh,
Aligarh (UP)
Also at:
Vill. Mundichak,
P.S. Kotwali,
Distt. Bhagalpur (Bihar) .....Driver
2. Sh. Lalan Kumar Rai
S/o Sh. Bhuvneshwar Rai
R/o VPO Patpara,
PS Vibhutipur, Distt. Samastipur
Petition No. :87/2017 Page No.1/15
Naresh Kumar & Ors. vs. Naveen Kumar & Ors.
Bihar. ...owner
3. National Insurance Co. Ltd.
Division No. 18, Palika Bhawan,
106, R.K. Puram, BlockB,
Sector13, New Delhi. ..... Insurance Company
.......Respondents
Date of Institution : 13.02.2017
Date of reserving of judgment/order : 15.03.2021
Date of pronouncement : 26.03.2021
JUDGMENT:
1. The petitioners being legal heirs of the deceased had filed the claim petition claiming the damages / compensation under Section 166 & 140 of the Motor Vehicle act, 1988 (hereinafter referred as 'the Act') for the fatal injuries sustained to Shakunti Devi in a road accident on 07.12.2015 at about 9.50 am while crossing the road from North side of Samastipur due to rash and negligent driving of bus bearing no. BR06P5382 by the respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3.
2. Facts of the case need not having big canvas.
"On 07.12.2015 at about 9.50 am, the deceased was going to purchase the household articles to the market from the south side and after purchasing the articles the deceased was going towards the North side for crossing the road then from the side of Samstipur, suddenly, one City Rider Bus bearing no. BR06P5382 coming in a very high speed in a rash and negligent manner hit the deceased.
3. Notice of the petition was issued to the respondents. Pursuant to notice, nobody appeared on their behalf. Hence, the respondent no.(s) 1 and 2 were proceeded exparte.
Petition No. :87/2017 Page No.2/15Naresh Kumar & Ors. vs. Naveen Kumar & Ors.
4. The respondent no. 3 in his written statement denied the averments of the petitioners mentioned in the petition. However, it admits that the vehicle was insured with respondent no. 3 vide policy no. 171200/31/15/6300010985 in the name of Lallan Kumar Ray for the period from 26.08.2015 to 25.08.2016.
5. For just adjudication of the case following issues were framed vide order dated 25.02.2019 :
1. Whether the deceased died in a road accident on 07.12.2015 at about 9.50 am while crossing the road from the North side of Samastipur due to rash and negligent driving of bus bearing no. BR06P5382 by the respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3 ?
2. To what amount of compensation, the petitioners are entitled to and from whom?
3. Relief.
6. In evidence, the petitioners examined two witnesses. PW1 Sh. Naresh Dass tendered his affidavit of evidence Ex.PW1/1 and relied upon the following documents i.e. Ex.PW1/A to Ex.PW1/J. Sh. Vikrant Kumar Pandey (eye witness) was examined as PW2.
7. The respondents did not examine any witness.
I S S U E No. 18. It is well settled law that where petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and negligent driving by the driver. In a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just rational and reasonable on the basis of enquiry.
Petition No. :87/2017 Page No.3/15Naresh Kumar & Ors. vs. Naveen Kumar & Ors.
Though it is an admitted legal position that the negligence on part of the driver with respect to the use of vehicle needs to be established but the same is to be established on the principles of preponderance of probabilities as decided in New India Assurance Co. Ltd. vs. Harsh Mishra & Ors. III (2015) ACC 435 Delhi.
9. PW1 Sh. Naresh Dass deposed that the deceased was his mother and was selling the fruits as well as sewing the clothes and was earning Rs.15000/ per month. The deceased mother went to Samastipur, Bihar in the marriage ceremony of her son. On 07.12.2015 at about 9.50 am, his mother was going to purchase the household articles to the market from the South Side and after purchasing the articles, the deceased was going towards the North side for crossing the road, then from the side of Samastipur, suddenly one City Rider Bus bearing no. BR06P5382 coming in a very high speed in a rash and negligent manner hit the deceased. Consequent thereto the deceased received grievous injuries. After the accident with the help of family members, villagers took the deceased mother of the deponent for the purpose of treatment at the clinic of Dr. Rati Raman Jha, Samastipur where the doctor declared her brought dead. The said accident took place due to the rash and negligent driving of the driving of the offending vehicle. The villagers took the deceased to the Civil hospital, Samastipur, Bihar and postmortem was conducted by the concerned doctor. Thereafter the concerned police of PS Mufsil has registered the case against the driver of the offending vehicle vide FIR no. 363/15 PS Mufsil.
In his crossexamination, he stated that he is not an eye witness to the accident. He stated that he has two brothers and one sister. His brother namely Suresh is studying in 12th Bihar and his father is also doing a job in a hotel in Bihar. He further stated in his crossexamination that his sister is married and Petition No. :87/2017 Page No.4/15 Naresh Kumar & Ors. vs. Naveen Kumar & Ors.
living with her family.
10. PW2 Sh. Vikrant Kumar Pandey deposed that on 07.12.2015 at about 9.15 AM, he was standing on the Batti Chowk, Kisok Nizamat, Samastipur, Bihar. He saw a vehicle bearing no. BR06P5382 a white colour bus coming in a rash and negligent manner, hit the deceased Shakunti Devi. The deceased used to sell the fruits in Uttam Nagar area of Delhi.
In his crossexamination, he stated that he did not call the police. He denied the suggestion that he is not the eye witness of the accident.
11. Ld. Counsel for the petitioners has argued that petitioners have filed the certified copies of criminal record which comprises of Final Report u/s 173 Cr.P.C., FIR, site plan, postmortem report etc. in support of its contention that accident was occurred due to the rash and negligent driving of the respondent no.
1. He further submits that PW2 also deposed about the rashness of the offending vehicle.
12. Per contra, Ld. Counsel for the respondent no. 3 has not disputed the accident, however he has stated that accident was occurred due to rash and negligent manner of the deceased herself. However, he has not denied the offending vehicle was insured with it. He further submits that the deceased was not selling anything in Delhi. Rather than, she used to reside in Bihar and was the housewife.
13. From the record as well statement of PW2, it has been established that the accident was occurred due to rash and negligent act of driving of the respondent no. 1. The petitioners have also placed on record certified copy of criminal record Petition No. :87/2017 Page No.5/15 Naresh Kumar & Ors. vs. Naveen Kumar & Ors.
which includes FIR, site plan etc. During crossexamination of PW2, nothing material could come out which goes against his version and his testimony can be safely relied upon. It is also pertinent to mention here that the respondents have not come forward with their own version of accident, in the absence of which the version of PW2 i.e. the eyewitness can be relied safely. Even the charge sheet has been filed against the respondent no.1. Therefore, in view of the above discussion, it is established that fatal injuries sustained to Shakunti Devi in a road accident on 07.12.2015 at about 9.50 am while crossing the road from North side of Samastipur was due to rash and negligent driving of bus bearing no. BR 06P5382 by the respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3.
14. Therefore, this issue no. 1 is decided in favour of the petitioners and against the respondents.
I S S U E No. 215. Now the court has to assess that how much compensation is awarded to claimants who lost her beloved one in the accident and to whom liability to compensation is fastened. Admittedly, Shakunti Devi was died because of the injuries suffered by her in the accident which was occurred due to the negligence of respondent no.1. Hence, the LRs of deceased are entitled for compensation for the financial loss suffered by them on account of the death of Shakunti Devi. In the present case, PW1 stated in his crossexamination that his sister is married and living with her family. Therefore, she cannot be said to be dependent upon the income of the deceased, however she is entitled for consortium being daughter of the deceased. The petitioner no.(s) 1 to 3 must be dependent upon Shakunti Devi. The petitioner no.(s) 1 to 3 being the legal representatives of the Petition No. :87/2017 Page No.6/15 Naresh Kumar & Ors. vs. Naveen Kumar & Ors.
deceased, shall be entitled for the following reliefs as per the law discussed in National Insurance Co. Ltd. vs. Pranay Sethi & Ors. decided in Special Leave Petition Civil no. 25590 of 2014 wherein the extent of the claim under different heads was discussed in detail and it was held that following amounts shall be considered as just and reasonable award under the following heads i.e., Loss of Consortium, Funeral expenses and loss of Estate. Funeral expenses and loss of estate has been limited to the extent of Rs. 15,000/ each subject to enhancement of Rs. 10% of every three year since the judgment in the above said judgment (Supra).
16. So far so, the loss of consortium is concerned, it has been decided by the Apex Court on 07.09.2020 in Civil Appeal No. 3093/2020 arising out of SLP (C) No. 23478/2019 in case titled as The New India Assurance Company Limited Vs Smt. Somwati and Ors. that wife and other claimants are entitled for Loss of Consortium whether it is wife or son or daughter. Apex court had also referred to The Black's Law dictionary in this respect "word consortium" has been defined in 10th Edition also simultaneously notices the filial consortium, parental consortium and spousal consortium." Filial consortium a child's society, affection and companionship given to a parent. Parental consortium: a parents' society, affection and companionship given to a child. Spousal consortium: A spouses' society, affection and companionship given to the other spouse. Therefore, in the present case, all the four petitioners being the sons, daughter and husband are entitled to consortium. Therefore, on the following heads, compensation is to be awarded as follows: S. No. Head Amount (in Rs.) 1 Loss of consortium 1,60,000/ Petition No. :87/2017 Page No.7/15 Naresh Kumar & Ors. vs. Naveen Kumar & Ors.
[40,000 x 4] 2 Funeral Expenses 15,000/ 3 Loss of Estate 15,000/
17. As far as the head of Loss of Dependency is concerned, same is to be calculated as per the multiplier method which has been adopted as a thumb rule in Sarla Verma vs. DTC [2009 (6) Scale 129] and various other judgments, unless there are exceptional circumstances which make it necessary to depart from the said rule. Further, in the judgment titled as National Insurance Co.
Ltd. vs. Pranay Sethi & Ors. (Supra) it has been concluded by the Hon'ble Supreme Court that in determination of the multiplier and the deduction for personal and living expenses the Tribunals shall be guided by the law as laid in Sarla Verma's case. Admittedly, the deceased was married, who left behind the petitioner no.(s) 1 to 3 as her legal heirs. As per the aadhar card, the birth year of the deceased was 1977 and the accident took place on 07.12.2015, therefore, he was 38 year of age at the time of accident, thus, the applicable multiplier would be '15'.
18. PW1 Naresh Dass stated that his deceased Shakunti Devi was selling fruits as well as sewing the clothes and has been earning Rs.15000/ per month. However, he has not placed on record any document to show that the deceased was selling fruits in Delhi. Even the accident was occurred in Bihar and aadhar card of the deceased has also been bearing the address of Bihar. PW1 stated in his crossexamination that his younger brother and his father are residing in Bihar. In these circumstances, it is assumed that the deceased was the housewife and was residing in Bihar only.
Petition No. :87/2017 Page No.8/15Naresh Kumar & Ors. vs. Naveen Kumar & Ors.
19. Courts have recognised the contribution made by the wife to the house is unvaluable and that it cannot be computed in terms of money. A housewife/home maker does not work by the clock and she is in constant attendance of the family throughout and such services rendered by the home maker has to be calculated while determining the loss of dependency. Therefore, the concept of notional income have gathered momentum. However, again the question arises what is the notional income in case of the housewife working round the clock rendering the services to all the family members. Having clue from the minimum wages of per month, notional income of the deceased be assessed as minimum wages prevailing at the particular time. As the notional income is being assessed, no deduction for selfexpenses is to be made. The deceased has been residing in Bihar and it has been established on record that the deceased was residing in Bihar. There is no evidence on record that the deceased was ever being selling fruits in Delhi. Her husband is doing job in a hotel in Bihar. Her son Suresh is also studying in 12 th in Bihar. Even her aadhar card prepared in Bihar. There is nothing on record to prove that the deceased was working in Delhi, therefore, the notional income (minimum wages) shall be taken for assessment of the loss of dependency. Therefore, the minimum wages of an 'unskilled person' as applicable in the state of Bihar be taken. The accident took place on 07.12.2015 and the minimum wages for an unskilled person as on the date of accident were Rs.4,914/ per month.
20. It is also important to mention here that the notional income shall never be a statics. Like on the line of the Law stated by the Hon'ble Supreme Court of India in case of the person having a definate income where future prospects be awarded. Some future prospects be also awarded to the housewife. The future prospects of 20% is seems to be just. Therefore, a 20% be added while calculating Petition No. :87/2017 Page No.9/15 Naresh Kumar & Ors. vs. Naveen Kumar & Ors.
the loss of dependency. After adding future prospects, the income of the deceased comes to Rs.5,896/ (4,914 + 4914 x 20/100). Thus, the loss of dependency comes to Rs.10,61,280/ (Rs.5,896 x 12 x 15). I therefore, award Rs.10,61,280/ to the petitioners towards loss of dependency.
21. In view of the decision on the issues, the total compensation in favour of the petitioners is calculated as under : LOSS OF DEPENDENCY= Rs.10,61,280/ LOSS OF CONSORTIUM= Rs. 1,60,000/ FUNERAL EXPENSES = Rs. 15,000/ LOSS OF ESTATE = Rs. 15,000/ ============ TOTAL = Rs. 12,51,280/ ============ LIABILITY
22. As the offending vehicle was being driven by respondent no. 1, primary liability to compensate the petitioners is of respondent no. 1. Since the vehicle was owned by respondent no.2, he becomes vicariously liable to compensate the petitioners. It is an admitted position on record that the vehicle was insured with respondent no. 3, therefore, respondent no. 3 becomes contractually liable to compensate the petitioners for the above mentioned amount.
RELIEF
23. In view of my findings on the issues, I award a sum of Rs.12,51,280/ (Rupees Twelve Lacs Fifty One Thousand Two Hundred Eighty only) to the LRs of the deceased Shakunti Devi as compensation alongwith interest @ 6% per annum from the date of filing the petition till its realization.
Petition No. :87/2017 Page No.10/15Naresh Kumar & Ors. vs. Naveen Kumar & Ors.
(In the share of Petitioner no. 1 i.e. Naresh Kumar (son of the deceased)
24. A sum of Rs.2,00,000/ alongwith the proportionate interest is awarded to the petitioner no. 1 being son of the deceased.
(In the share of Petitioner no. 2 i.e. Hito Das (husband of the deceased)
25. An amount of Rs.8,51,280/ is awarded to the petitioner no. 2. Out of this amount, an amount of Rs.6,00,000/ is directed to be kept in the form of fixed deposit in the following phased manner :
1. Rs. 1,00,000/ for a period of 01 year.
2. Rs. 1,00,000/ for a period of 02 years.
3. Rs. 1,00,000/ for a period of 03 years.
4. Rs. 1,00,000/ for a period of 04 years.
5. Rs. 1,00,000/ for a period of 05 years.
6. Rs. 1,00,000/ for a period of 06 years.
(In the share of Petitioner no. 3 i.e. Suresh Das (son of the deceased)
26. A sum of Rs.2,00,000/ alongwith the proportionate interest is awarded to the petitioner no. 3 being son of the deceased.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
27. In consonance to the idea conceptualized and formulated in various land mark judgments of our own Hon'ble High Court, by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble High Court, respondent no.3 is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioners within a period of 30 days from today, failing which the Petition No. :87/2017 Page No.11/15 Naresh Kumar & Ors. vs. Naveen Kumar & Ors.
respondent no.3 shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
28. The respondent no.3 is directed to credit the amount directly to the MACT account of State Bank of India, District Court, Saket branch.
Details of the bank i.e. IFSC code etc. have been provided to the ld.
counsel for the insurance company.
29. The award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT FUND PARKING A/c 35195787436 IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir alongwith calculation of interest and to the Counsel for the petitioners.
30. MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE'(MCTAP)
31. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner:
1. The interest on the fixed deposit be paid to the petitioners / claimants by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
2. Withdrawal from the aforesaid account shall be permitted to claimants / petitioners after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
3. No cheque book be issued to claimants / petitioners without the permission Petition No. :87/2017 Page No.12/15 Naresh Kumar & Ors. vs. Naveen Kumar & Ors.
of this Court.
4. The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the claimants/petitioners alongwith the photocopy of the FDRs.
5. The original fixed deposit receipts shall be handed over to claimants / petitioners at the end of the fixed deposit period.
6. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
7. Half yearly statement of account be filed by the Bank in this Court.
8. On the request of claimants / petitioners, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
9. Claimants / petitioners shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
10. The bank is also directed to get the nomination form filled by the claimants at the time of preparation of FDRs.
11. The bank is also directed to keep the money received from the respondent no.2 in an FDR in the name of the bank till the FDRs are prepared in the name of the claimants, so that the benefit of better interest may be given to the claimants for the said period.
12. The Manager, State Bank of India, District Court Saket branch is directed not to release any amount to the petitioners from this branch, unless ordered by the Tribunal in terms of the order of the Hon'ble High Court in FAO No. 842/2003 and CM Applications No. 32859/2017, 4112541127/2017 in Rajesh Tyagi & Ors. vs. Jaibir Singh & Ors. dated 09.03.2018. It is made clear that the amount including the maturity amount of the FDRs shall be released to the petitioner through RTGS/ NEFT directly in the personal bank account of the petitioners of the bank nearest to their place of residence.
DIRECTIONS FOR THE RESPONDENT NO. 3• The respondent no. 3 is directed to file compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
• The respondent no.3 shall intimate the claimants / petitioners about their Petition No. :87/2017 Page No.13/15 Naresh Kumar & Ors. vs. Naveen Kumar & Ors.
having deposited the amount in favor of the petitioners in terms of the award, at the address of the petitioners mentioned at the title of the award, so as to facilitate them to withdraw the same. • Copy of this award / judgment be given to the parties for compliance. • The case is now fixed for compliance by the insurance company for 26.04.2021.
FORM IVA SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1) Date of accident : 07.12.2015
2) Name of the deceased : Shakunti Devi
3) Age of the deceased : 38 years
4) Occupation of the deceased : Housewife
5) Income of the deceased : Rs.4914/ (189 x 26 days)
6) Name, age and relationship of legal representatives of deceased :
S. Name Age Relation
No.
1 Naresh Kumar 26 years Son
2 Sh. Hito Das 56 years Husband
3 Suresh Das 23 years Son
Computation of Compensation
S. Heads Awarded by the Claims
No. Tribunal
4 Income of the deceased (A) Rs.4914/
5 Add Future Prospects (B) Rs.982/
6 Monthly loss of dependency Rs.5896/
[(A+B) = D]
7 Annual loss of dependency (Dx12) Rs.70,752/
8 Multiplier (E) 15
9 Total loss of dependency Rs.10,61,280/
Petition No. :87/2017 Page No.14/15
Naresh Kumar & Ors. vs. Naveen Kumar & Ors.
(Dx12xE=F)
10 Compensation for loss of Rs.160,000/
consortium (H)
11 Loss of Love and Affection (I)
12 Compensation for loss of estate (J) Rs.15000/
13 Compensation towards funeral Rs.15000/
expenses (K)
14 TOTAL COMPENSATION Rs.12,51,280/
(F+G+H+I+J+K= L )
15 RATE OF INTEREST AWARDED 6%
16 Interest amount upto the date of Rs.3,13,445/
award (M)
17 Total amount including interest Rs.15,64,725/
(L+M)
18 Award amount released Rs.9,64,725/
19 Award amount kept in FDRs Rs.6,00,000/
20 Mode of disbursement of the award Some amount is released to the
amount to the claimant (s). petitioners and some amount is
directed to be kept in the form
of fixed deposit.
21 Next date for compliance of the 26.04.2021
award
Pronounced in the open Court
on 26th March, 2021 (ATUL KUMAR GARG)
Presiding Officer : MACT
South Distt. : Saket Courts
New Delhi
Petition No. :87/2017 Page No.15/15