Delhi District Court
Smt. Anju Singh vs Darbara Singh on 4 July, 2007
1
IN THE COURT OF V.K. MAHESHWARI:
PRESIDING OFFICER
MOTOR ACCIDENT CLAIM TRIBUNAL,
PATIALA HOUSE COURTS: NEW DELHI
Suit no.: 1028/98
Date of institution: 24.07.1998
1.Smt. Anju Singh,
w/o late Sh.Vashishth Singh
2.Smt. Kalawati Singh,
W/o Sh. Mani Ram Singh
Both R/o Vill. Dhauhara,
PO Pipra Gautam,
distt. Basti, UP.
........PETITIONERS
VERSUS
1.Darbara Singh,
S/o Sh. Pritam Singh,
R/o D-407, Azadpur Subzimandi,
Delhi.
2.M/s Karnal Vegetable Company,
Karnal Subzimandi, Karnal,
Haryana.
3.National Insurance Company,
Bhandari House, IIIrd Floor,
4/24A, Asaf Ali Road,
New Delhi.
.......RESPONDENTS
Arguments heard on :02.06.2007 Date of decision:04.07.2007. Amount of Compensation Claimed: Rs 25 lacs AWARD:-
1. Case of the petitioners is that on 12.05.1998 at about 10.45 a.m deceased was going to his job on his cycle towards Kapashera Chowk. When he reached at crossing a truck bearing no. HR-
45/3357 driven by respondent no. 1 came from Samalkha side in a most rash and negligent manner, hit and crushed him. He died on the spot. He was taken to Safdarjung Hospital.
1/19 22. Deceased was 25 yrs of age at the time of this accident. He was employee of M/s EEL India Ltd. Udyog Nagar, Phase-III, Gurgaon, earning Rs. 2500/- per month.
3. Notice of this petition was issued to all the respondents. Respondent No.1 and 2 did not appear, hence they were proceeded exparte. Respondent no. 3 filed its WS denying all the ground taken in petition, however it is admitted that offending vehicle was insured in the name of respondent no. 2 at the time of this accident.
4. On the pleadings of parties following issues were framed by my Ld Predecessor on 26.05.2004:-
i. Whether the deceased Vashishth Singh sustained fatal injuries in road accident dt. 12.05.1998 because of rash and negligent driving of truck no. HR-45/3357 by R1, owned by R-2 and insured with R-3?
... OPP ii. If issue no. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled to and from whom?
... OPP iii. Whether R-1 was not holding valid and effective D/L to drive the said vehicle at the time of accident in question, if so, to what effect?
...OPR-3
iv. Relief.
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5. Petitioners No.2 appeared in the witness
box in order to prove her case. Respondents have
not produced any witness in support of their case.
6. Arguments heard. File perused. My issue wise finding is as under:
ISSUE NO: 1
7. Ld. Counsel for respondent No.3 argued that petitioners have not produced any eye witness to prove rash and negligent driving of offending vehicle for causing this accident. It is argued on behalf of the petitioners that deceased had died in this road accident. She has produced certified copy of criminal record of criminal case pertaining to FIR No. 227/98 U/S 279/304-A IPC P.S Vasant Kunj from the Court of Ms. Illa Rawat, the then MM, New Delhi. It also contains post martem report of deceased and copy of FIR. Petitioners have also produced certified copy of criminal record which shows that after completion of investigation police has submitted charge-sheet U/S 279/304-A of IPC against respondent no.1. Certified copy of FIR also proves that criminal case was regd against respondent no. 1. Mechanical inspection report of offending vehicle proves that this vehicle was involved in this accident. Petitioners have also produced certified copies of statements of witnesses made in criminal case where R.1 is facing trial for his rash and negligent driving of 3/19 4 offending vehicle. A Motor accident claim petition is a summary inquiry only, hence all these documents are sufficient proof to reach to a conclusion that this accident had taken place because of rash and negligent driving of R.1.
Hitting of the cycle of deceased from behind by respondent no.1 also proves his rash and negligent driving of vehicle No. HR-45-3357.
8. Respondents No. 1 and 2 have denied the factum of this accident evasively. No specific denial amounts to admission. Hon'ble High Court of Rajasthan in RSRTC Vs. Pista, 2003 ACJ-1783 in this regard has held as follows:-
" Civil Procedure Code, 1908, Order 8, rule 5- Specific denial-Facts pleaded by claimants in their claim petition with regard to age,occupation and income of the deceased have not been specifically denied- Whether the facts stands admitted- Held: Yes; any evasive reply cannot be said to be denial in the eyes of law and it amounts to implied admission."
admonish
9. Petitioners have produced certified copy of the statement of Ct. Surender, recorded in criminal case on the file. Even this witness has stated that this accident had taken place because of rash and negligent driving of vehicle No HR-45- 3357 by Darbara Singh who hit the cycle of deceased 4/19 5 from behind due to which deceased Vashishth Singh fell down on the road and received fatal injuries and died. Truck driver had run away after leaving the truck on the spot. Hon'ble High Court of Andhara Pradesh in Bontu Venkata Rao Vs Kalla Venkataramana 2005 ACJ 77 with regard to admissibility of statement recorded U/S 161/162 of Cr. P.C has held as follows:
"Criminal Procedure Code, 1973, Section 161 and 162- Statement of witness before police- Bar of using such statement- Statement of owner regarding involvement of his vehicle in accident was recorded by investigating agency and its user is limited for the purpose of contradicting the witness- Whether the bar is applicable in civil proceedings- Held: no; limitation applied only in a criminal trial."
10. Hon'ble High Court of Kerala in case titled "Kerala State Road Transport Corporation Vs. C. Soman Nadar and Another, 1984 A.C.J. 607" has held as under :
"Evidence - Driver -
Statement of driver who
caused the accident not
believed as his testimony
being interested and
unaided by any
corroboration."
11. Hon. Supreme Court in the recent case
5/19
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titled Khushnuma Begum and others vs. New India Assurance Company ltd. Reported as 2001 ACJ 428 has held in para no. 10 and 11 as follows:-
"It must be noted that the jurisdiction of the Tribunal is not restricted to decide claims arising out of negligence in the use of motor vehicles. Negligence is only one of the species of the causes of action for making a claim for compensation in respect of accident arising out of the use of motor vehicles. There are other premises for such cause of action.' ' Even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such rule in Ryland V. Fletcher, 1861-73 All ER, 1 can apply in motor accident cases. The said rule is summarised by Blackburn J. Thus:
" The true rule of law is that the person who for his own purposes , brings on his land, and collects and keeps there anything likely to do mischief if escapes must keep it at his peril and , if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape can owing to the plaintiff's default, or perhaps, that the escape was the consequence of vis 6/19 7 major, or the act of God; but as nothing of this sort exists here. It is unnecessary to inquire what excuse would be sufficient.
12. Hon. Supreme Court further observed in para 18 as follows:-
'' Like any other common law principle, which is acceptable to our jurisprudence , the rule in Rylands V. Flectcher, 1861-73 All ER, 1 can be followed at least until any other new principle which excels the former can be evolved, or until legislation provides different. Hence, we are disposed to adopt the Rule in claims for compensation made in respect of motor accidents.''
13. Hon. Supreme Court in another case titled N.K.V Brothers (P) Ltd. vs. M. Karumai Ammal reported as 1980 ACJ 435 has held as follows:-
"Motor Vehicles Act, 1939, sections 110-B and 110-C-Law reforms-Claims Tribunals-Powers and procedure-Tribunals must take special care to see that the innocent victims do not suffer and drivers 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-Supreme 7/19 8 Court suggested the State must seriously consider no fault liability by legislation and State must appoint sufficient number of Tribunals for quick disposal."
14. Our Hon. Supreme Court in Pushpa Bai Purshotam Dass vs. Ranjeet Ginning and Pressing company (1977) 3 S.C.R 372 has held as follows:
"The car was being driven rashly and negligently . Although no eye witness was examined P.W.1 the brother of the deceased who went to the spot soon after the accident was examined. He deposed that the car dashed against a tree. The tree was on the right hand side of the road, 4ft away from the right-hand side of the main metalled road. The road was 15 ft. wide and was a metalled road. On other side of the road there were field at lower level. The tree against which the car dashed was uprooted. The car dashed so violently that the machine of the car went back about a foot from its original position. The steering wheel of the engine of the car receded back on the driver's side and the said impact on the driver's side and by the said impact the occupants died and front seat also moved back. The witness was not cross-examined on these facts. The maxim of "Res ipsa loquitor"
clearly applies in the present case. In view of the proved facts the burden was on the respondents to prove the inevitable accident.''
15. It has been observed as follows in Eller Vs. Selfridge (1930) 46 T.L.R 236:
" The normal rule is that it is for the 8/19 9 plaintiff to prove negligence but in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it. The plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitor. It means the accident "speaks for itself" or "tells its own story."
16. Hon'ble High Court of Karnataka in Mallamma Vs Balaji & Ors II (2003) ACC 257 has held as under:-
"Held: It is a well settled law that the strict rules of Evidence Act need not be applied in a case of motor vehicle accident to prove its negligence in para 11 of the judgment of the Tribunal has observed that the claimant has not proved the negligence of the driver of the vehicle."
17. Hon'ble High Court of Andhra Pradesh in Pillutla Savitri & Ors VS Gogineni Kamalendra Kumar & Ors I (2001) ACC 263 has observed as follows:-
"Torts: Res Ipsa Loquitur: Applicability - It is not always necessary that direct proof of 9/19 10 negligence should be adduced by plaintiffs-
circum-stances from which reasonable inference of negligence on defendants can be drawn is enough- inference to be drawn from proved facts- General purport of 'res ipsa loquitur' is that accident' speaks for itself'- Burden of proof on defendant to explain and show that accident occurred without any negligence on his part- It is not a rule of law but evidence- Defendants failed to establish specific plea put forward by them that construction was made by after obtaining due sanction from Municipality- They failed to sanctioned plan or order of approval from Municipality- Adverse inference drawn against defendants."
18. Hon'ble High Court of Madhya Pradesh in Basant Kaur Vs. Chatterpal Singh 2003 ACJ-369 has held as follows:-
Negligence -Accident between truck 'A' and truck 'B' resulting in death of driver of truck 'A'-Widow of the deceased was informed by owner of truck 'A' that driver of truck 'B' was driving his truck rashly and negligently and caused the accident- Criminal case has been registered against driver of truck 'B' - Tribunal held that negligence of driver of truck 'B' is not proved and it 10/19 11 dismissed the claim petition- Whether the facts are enough to record a finding that driver of truck 'B' was responsible for casing the accident- Held: Yes.
19. Hon'ble High Court of Punjab and Haryana in Nirmala Kumari Vs Union of India 2006 ACJ 1121 has held as follows with regard to admissibility of an FIR to fix liability in tort.
"Evidence FIR -Appreciation of-
Whether the FIR being a public document is admissible in evidence where liability in tort is to be fixed on preponderance of probabilities-Held: Yes."
20. Our Hon'ble High Court in Veena Kumari Vs Jasveer Singh 2003 VII AD (Delhi) 598 has held as follows:-
"Motor. Vehicles Act-
Sections 140, 163A-Death in accident-Tribunal dismissed the petition on the ground that the appellants were not able to prove that the accident was caused due to the rash and negligent driving of the offending vehicle by its driver-Hence the present appeal against the judgment of the Tribunal by the claimants-
Principles laid down in S.Kaushnuma Begum Vs New 11/19 12 India Assurance Co. Ltd be applied."
21. Our Hon'ble High Court in Bala and ors Vs Moti Chand Gupta 107 (2003) DLT 643 has held as follows:-
"Motor Vehicles Act, 1988-
Sections 158(6)(4), 166 (4) - Compensation:
Application may be made not only by LRS. Of deceased: Even charge-
sheet submitted by Police Officer to Tribunal to be treated as application for compensation by Claims Tribunal: Tribunal should not have taken technical view that charge-sheet and other documents should be proved by witness: Perusal of charge-sheet clearly shows it was offending vehicle involved in accident and driver of that vehicle charged to face trial for offence punishable under Sections 219/304-A IPC: Tribunal should have taken recourse to Section 163-A to grant relief to appellant on ground of no fault liability: Judgment of Tribunal being perverse, set aside."
22. In these circumstances this court is of opinion that petitioners have proved their case 12/19 13 that this accident on 12.05.1998 had taken place because of rash and negligent driving of vehicle No. Hr-45/3357 by respondent No.1 in which deceased had died, as pleaded by the petitioners in their petition. Hence this issue is decided in favour of petitioners against the respondents.
ISSUE NO: 2
23. Petitioner no. 2 appeared in the witness box and deposed that deceased was her son, who died in this road accident. He had left behind petitioner no. 1, who is his widow. No issue was born out of the wedlock.
24. According to averments made in the petition, deceased was working in EEL India Ltd., Udyog Nagar Phase IIIrd, Gurgaon. Petitioner no. 1 has also filed her affidavit on the file but she has not appeared in the witness box to tender her affidavit in evidence.
25. It is argued on behalf of petitioners that after considering young age of deceased chances of advancement of his future prospects may be taken in consideration while granting compensation to the petitioners.
26. Starting point for calculating amount of compensation to be paid to dependents of deceased in a Motor Accident Claim is the amount of wages 13/19 14 which the deceased was earning; then there is an estimate of what was required for his personal and living expenses. The balance will generally be turned into lumpsum by taking certain number of years of purchase. The choice of multiplier is ascertained by the age of the deceased or that of the claimant whichever is higher.
27. In case of Sarla Dixit Vs. Balwant Yadav AIR 1996 SC 1272 it was held by Hon. Supreme Court that while calculating dependency the chances of future prospect of advancement in life and career should be taken into consideration. The gross monthly income of the deceased would shoot up at least double of that which he was earning at the time of his death had he survived. The average gross future income would be arrived at by adding actual gross income at the time of death to the maximum which he had otherwise got had he not died premature death and dividing it by two, gross monthly income spread over his entire future career had he been alive would be calculated.
28. Even a minimum wager has a future prospects of advancement which is clear from the fact that minimum wages are being revised every year by the Government. Minimum wages of an unskilled labour were Rs.240/- pm on 1.1.1980 while the minimum wages of unskilled labour were Rs.3044/- pm as on 1.2.2005. It is a matter of experience that DA is being revised every year 14/19 15 twice by the government, hence, pension and salary of government servant increases every year twice.
29. Normal span of life in this part of country is 70 years. Thus deceased had a long span of life of about 45 years yet to live had he not died in this accident. Taking judicial notice of these facts, this Court is of considered opinion that future prospects of advancement deceased should also be taken in consideration while assessing loss of dependency to the petitioners. As no documentary evidence with regard to earnings of deceased has been filed on record, hence this court is assessing the earnings of deceased as per Minimum Wages Act. Minimum wages of an unskilled labourer in the year 1998 when the deceased was died in this accident were Rs. 1937/- p.m.
30. After taking chances of future advancement prospects of deceased in consideration his average earnings will be Rs. 1937 + 3874 = 5811/2 = 2905/-pm.
31. Our Hon'ble High Court in Kela Devi Vs Ram Chand ACJ 1986 page 1818 has held that where income of deceased is meager unless there is positive evidence to the contrary it must be presumed that the deceased was sharing the entire income with his family. No reasonable person can spent 1/3rd or half of the income on himself.
32. Similar view is taken by our Hon'ble High 15/19 16 Court in Khajano Devi Vs Moti Lal ACJ 1994 (I) P-
485, Phoola Rani VS Rattan Lal ACJ 85 (I) P-530, Misri Devi Vs New India Assurance Co ACJ 1998 (I)
665.
33. Our Hon'ble High Court in Ved Parkash Vs Gurmeet Singh ACJ 1992 II P-147 has held that where the income of deceased is as low as the minimum wages no deduction should be made towards personal expenses of the deceased. Families which are required to arrange their livings in a mere subsistence level cannot be deprived of the compensation by mechanically following the rule of deduction of 1/3rd income towards personal expenses. It is held as follows in this case:
" Motor Vehicle Act, 1939- Section 110D-
Appeal for enhancement of compensation-
Deceased of 53 years old earning Rs.450/- pm at the time of his death- Deduction of 1/3rd of the earning towards personal expenses of the deceased-(no) such deduction to be made where the income is as low as the minimum wages-
Multiplier of 12 applied by the Tribunal found not unreasonable- compensation of Rs.36,000/-
awarded by the Tribunal enhanced to Rs.64,800/- by the High Court in appeal."
34. Our Hon'ble Supreme Court in 2004 ACJ 699 Fakeerappa Vs Karnataka Cement Pipe Factory with regard to deduction on account of personal 16/19 17 expenses has discussed as follows in this regard.
"What would be the percentage of deduction of personal expenditure cannot be governed by any rigid rule or formula of universal application. It would depend upon the circumstances of each case. The deceased undisputedly was a bachelor. Stand of the insurer is that after marriage, the contribution of the parents would have been lesser and, therefore, taking an over all view the Tribunal and the High Court were justified in fixing the deduction."
35. In view of above discussion this court is of opinion that an amount of Rs. 950/- should be deducted on account of personal expenses of deceased in this case, thus earnings of deceased comes to Rs. 2000/- p.m for assessing loss of dependency to the petitioners. Yearly loss will be Rs. 2000 x 12 = 24,000/-. Deceased was 25 years of age at the time of his death. Multiplier for the age group of a person between 20 yrs to 25 yrs as per second schedule of Motor Vehicle Act is 17. After considering the age of deceased, his long remaining working years, young age of widow, and old age of his mother this Court is adopting a multiplier of 17 in this case. Hence the total loss of dependency of claimants will be 24,000 x 17 = 4,08,000/-. Petitioners will also be entitled for an amount of Rs.25,000/- on account of loss of love 17/19 18 and affection and consortium and Rs 5000/- towards funeral expenses. Thus petitioners will be entitled for a total compensation of Rs. 4,38,000/- less the amount of interim award, if any, already received by them along with 7% interest. This issue is decided accordingly.
ISSUE NO. 3:
36. Onus of proving of this issues was on respondent no. 3, however respondent no. 3 has not produced any evidence to prove this issue. Petitioners have filed certified copy of report U/s 173 of M. V. Act, according to which respondent no. 1 has been challaned U/s. 279/304A of IPC only, thus even police has not challaned driver of the offending vehicle without DL. Petitioners have also produced certified copy of DL of driver and RC which again proves that driver of offending vehicle was having DL which was seized by the police. From all these documents prima-facie it appears that R1 was having a DL. In these circumstances, when R3 has not produced any evidence to prove that his DL was not valid, this issue is decided against R3.
RELIEF:
37. In view of foregoing discussion petitioner will be entitled for a total compensation of Rs 4,38,000/-(Rupees Four Lacs and Thirty Eight Thousand Only) less the amount of 18/19 19 interim award, if any, already received by them along with 7 % interest from the date of filing of this petition till realization of the amount.
38. The total awarded amount shall be payable to both the petitioners in equal proportions. Out of the total awarded amount of petitioner No. 1 & 2 70% amount will be deposited in the form of FDRs for a period of 7 yrs in any Nationalized bank with the provision that they may opt for awarding of periodical interest but no loan shall be granted against the said FDRs.
39. Respondents No. 1, 2 and 3 will be jointly and severally liable to pay this amount, as vehicle was insured with Respondent no. 3, hence respondent no. 3 is directed to deposit the awarded amount by way of cheques in the name of petitioners within 30 days from today.
Order accordingly. File be consigned to R.R. ANNOUNCED IN OPEN COURT ON DATED 04.07.2007.
(V.K. MAHESHWARI) PRESIDING OFFICER: MACT 19/19