Delhi District Court
Sonali Jana vs . Jit Lal on 6 February, 2012
Sonali Jana Vs. Jit Lal
1
IN THE COURT OF SHRI SANJIV JAIN PO : MACT02 : SOUTH DISTRICT
SAKET COURTS : NEW DELHI.
In Suit No. 372/10
1. Sonali Jana
W/o Late Pramod Kumar
2. Yash Kumar
S/o Late Pramod Kumar
3. Smt. Bhopali Devi
W/o Late Nakli Ram
All Residents of
1305, Poorvanchal Staff Quarters,
Jawaharlal Nehru University, New Delhi
Permanent Resident of
Vill. Rasulpur Zahid, P.O Khas,
Distt. Meerut, U.P.
In Suit No. 379/10 and 380/10
Dr. Sarjeet Singh Thakur
S/o Late Shobha Ram
R/o E104, National Institute of Plant Genome
Research Campus,
J.N.U. Campus, Aruna Asaf Ali Marg,
New Delhi - 110 067
...... Petitioners
Versus
1. Jit Lal
S/o Sh. Chhote Lal
R/o 21128F106,
Wazir Pur, Delhi
Suit No. 372/10, 379/10 & 380/10
Sonali Jana Vs. Jit Lal
2
2. Ms. Anu Sharma
W/o Sh. Ravinder
3. Sh. Ravinder
Both R/o 408, Kashmiri Bagh, Bhagat Singh Marg,
Kishan Ganj, Delhi - 110 007
4. Reliance General Insurance Co. Ltd.
D193, 2nd Floor, Okhla Ind. Area PhaseI
New Delhi.
Also at
19, Reliance Centre, Walchand Hirachand Marg,
Bellard Estate, Mumbai - 400 001
......Respondents
Date of Institution : 06.07.09 (Suit no. 372/10)
05.10.09 (Suit no. 379/10)
05.10.09 (Suit No. 380/10)
Date of reserving of judgment/order : 19.01.12
Date of pronouncement : 06.02.12
J U D G M E N T :
1. Vide this common judgment, I shall dispose off the above stated petitions filed under Section 166 and 140 of Motor Vehicle Act, 1988, as amended upto date (herein after referred to as Act), as the same have emerged out of the road accident which occurred on 25.04.09 at about 5.30 AM at Nelson Mandela Marg near Vasant Kunj, New Delhi whereby the petitioners have claimed compensation for untimely death Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 3 of Pramod, injuries on the person of Dr. Sarjeet and damages to the car owned by Dr. Sarjeet.
2. Adumbrated in brief, the facts leading to the above stated petitions are that on 25.04.09 at about 5.30 AM the deceased Pramod and the petitioner Dr. Sarjeet were checking the wheels of the car bearing no. DL 9C T 1403 at Nelson Mandela Marg near Vasant Kunj. Suddenly an Innova car bearing no. HR 38 NT 4534 being driven by respondent no.1 in a rash and negligent manner and at a fast speed came from behind and hit their car. Due to this forceful impact, the deceased and the petitioner Dr. Sarjeet fell down on the road and sustained injuries. They were removed to JPN Trauma Centre, AIIMS where Pramod succumbed to the injuries on 04.05.09. The petitioner Dr. Sarjeet had clots in his brain. A case vide FIR 159/09 at police station Vasant Kunj was registered against the respondent no.1. Respondent no.2 was the registered owner of the Innova car and it was insured with respondent no. 3.
It is stated that the deceased was 28 years of age. He was hale and hearty. He would have lived upto the age of 80 years had he not died in the accident. It is stated that the LR's of the deceased / petitioners (Petition no. 372/10) have no source of income after his death and their financial condition is bad. It is stated on behalf of petitioner Dr. Sarjeet that he is still under treatment. More than Rs. Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 4 50,000/ have been spent till date. He has a fracture in his right hand and leg with teeth broken. It is stated that the damaged car was sent to the Authorised Service Station i.e. Metro Chevrolet at Safdarjung Enclave for repair. It was repaired and the company has given an invoice of Rs. 1,82,525/ as charges for the repair of the car.
3. Notice of the petitions was given to the respondents. Respondent no.4 contested the petition denying its liability stating that the cheque issued by the owner / insured for payment of premium had bounced due to insufficient funds. Respondent no.1 to 3 were served through publication but they did not appear and were proceeded Exparte on 01.11.10. All the petitions were consolidated vide order dated 29.01.10 and the case titled Sonali Jana & Ors. Vs. Jeet Lal & Ors. was taken as the lead case.
4. From the pleadings of the parties, following consolidated issues were framed vide order dated 31.07.2007 :
i. Whether petitioner Sarjeet Singh Thakur sustained injuries and deceased Pramod Kumar succumbed to the injuries sustained in road accident on 25.04.09 at Nelson Mandela Marg near Vasant Kunj, New Delhi due to rash and negligent driving of vehicle no. HR 38 NT4534 (Innova car) being driven by R1, owned by R2 and insured with R3?
Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 5 ii. Whether car bearing no. HR 38 NT 4534 caused damages to the car bearing no. DL 9C T 1403 belonging to petitioner Sarjeet Singh Thakur on account of its rash and negligent driving by R1 in the accident on 25.04.09?
iii. To what amount of compensation, the petitioners are entitled to and from whom?
iv. Relief.
5. The parties were thereafter called upon to substantiate their case by leading evidence.
6. The petitioner Sarjeet Singh Thakur appeared in the witness box as PW1. He tendered his affidavit Ex.PW1/A in evidence and the documents Ex.PW1/1 to Ex.PW1/77. He stated that they were removed to JPN Trauma Centre, AIIMS where Pramod succumbed to the injuries on 04.05.09. He sustained head injuries and fracture in his right hand and leg. Three teeth were broken. He has a blood clotting which may cause seizure disorder in future. He has cut in his lips. His brain surgery was done on 03.07.09. He also tendered the certified copy of the report U/s 173 Cr.P.C. Ex.PW1/78 (colly.). Smt. Sonali examined herself as PW2. She also tendered her affidavit Ex.PW2/1 and the documents Ex.PW2/1 to Ex.PW2/6. She stated that during the course of treatment of Pramod Kumar, she had spent Rs. 10,000/. He was getting a salary of Rs. 7000/ p.m. from Dr. Sarjeet. She stated Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 6 that the deceased left behind her, minor son aged 4 years and mother. She filed the copy of the license of the deceased and the medical bills Ex.PW2/6 (colly.).
7. Respondent no.4 examined Sh. Navneet Goel, Asstt. Manager (Legal) as R4W1. He tendered his affidavit Ex.R4W1/A in evidence and documents Ex.R4W1/1 to Ex.R4W1/4 i.e. the copy of the policy, the cheque return memo, the cheque and intimation to the insured about the dishonour of the cheque. He stated that they mention the mode of payment on the cover note before issuing the policy however, he admitted that the cheque no. and date is not mentioned on the cover note Ex.PW1/78. He stated that the cover note was issued on 12.04.09. Generally they send the cheque to the bank for encashment within 23 days. He stated that on Ex.R4W1/2, the cheque amount is mentioned as Rs. 10838/, presentation date as 24.04.09 and return date as 25.04.09 for the reasons "insufficient funds". He stated that the policy is issued to the party even without realisation of the amount against the cheque. He stated that as per the document Ex.R4W1/1, the policy was signed at Mumbai on 28.04.09 in view of the cover note dated 12.04.09 however, the said policy was never sent to the party. He stated that they do not have any proof as to whether the party was informed/served about dishonour of the premium cheque or as to whether the copy was served on the Regional Transport Authority. Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 7
8. I have heard the arguments advanced by Ld. counsel Sh. Yogesh Narula for the petitioners and Sh. Ganesh Pandey for the insurance company and perused the record.
9. It was submitted on behalf of the petitioners that the deceased Pramod Kumar was 28 years of age and was survived by his son, wife and mother. Due to involvement of the vehicle driven by respondent no.1, not only deceased Pramod Kumar lost his life but the lives of the petitioners have also been ruined as the deceased was the supporting earning member of the family and serving all financial and sentimental needs of his family. It was submitted that deceased would have gone on to live a longer life, had he not met with the accident. From the charge sheet and other documents, it is clear that the car driver i.e. respondent no.1 was negligent and solely responsible for the accident. For the petitioner Dr. Sarjeet it was submitted that he sustained multiple injuries. His car was also damaged in the accident. He is still undergoing treatment. As on date Rs. 29000/ have been incurred on his treatment. He remained on leave for about 46 days. Ld. counsel stated that the petitioner has not been fully reimbursed of the damages caused to his vehicle by his Insurance Company.
10. Ld. counsel for the insurance company submitted that the insured had taken the policy on payment of premium by cheque which on Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 8 presentation was dishonoured with the remarks insufficient funds. Information was given to the owner and RTO office about dishonour of cheque and thereafter the policy was cancelled. Ld. counsel stated that the respondent no.4 is not liable to indemnify the insured.
11. I have considered the rival submissions of the parties. My findings on the issues are as follows :
I S S U E No. 1 & 2
12. It is well settled law that where a petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and negligent driving. To prove rash and negligent driving 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. The proceedings under Motor Vehicles Act are not akin to the proceedings in a civil suit. Further, roving enquiry is not required to prove the rashness and negligence on the part of the driver as has been held in Kaushumma Begum and others Vs New India Assurance Co. Ltd. 2001 ACJ 421 SC.
13. PW 1 has stated that on 25.04.09 at about 5.30 AM he and his driver Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 9 Pramod were checking the wheels of the car bearing no. DL 9C T 1403 at Nelson Mandela Marg near Vasant Kunj. Suddenly an Innova car bearing no. HR 38 NT 4534 being driven by respondent no.1 in a rash and negligent manner and at a fast speed came from behind and hit their car. Due to this forceful impact, they fell down on the road and sustained injuries. He placed on record the charge sheet U/s 173 Cr.P.C. Ex.PW1/78 (Colly.) of the case registered vide FIR 159/09 at the police station Vasant Kunj against the respondent no.1. Perusal of it reveals that the case was registered on the statement of PW1 wherein he had reiterated the facts as stated in the petition and in his testimony. The mechanical inspection reports placed with the charge sheet also corroborate the testimony of PW1 as there were fresh damages on the front portion of Innova car and on the rear portion of the Spark car. In the instant case the offending vehicle had hit the car of the petitioner from behind which perse amounts to negligence. As per the postmortem report, the cause of the death of deceased Pramod was opined as Speticimia consequent upon multiple injuries antemortem in nature possible in road traffic accident. PW1 has also stated that he sustained multiple injuries. He had fracture in his right leg and hand and head injuries. His car was badly damaged. A sum of Rs. 1,82,582/ was spent on its repair out of which Rs. 1,50,000/ was paid by insurance company. He placed on record the photographs, repair bills and the payments Ex.PW1/76 and Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 10 Ex.PW1/77. Hon'ble High Court of Delhi in case titled ''National Insurance Company Limited V/s Pushpa Rana'' reported as 2009 ACJ 287 has held that whenever criminal proceedings are placed on record on completion of investigation by the police, then that in itself is sufficient proof of the negligent driving of driver of the offending vehicle involved in the accident.
It is therefore primafacie established that the offending vehicle i.e. HR 38 NT 4534 was involved in the accident which led to untimely death of Pramod Kumar, injuries on the person of Dr. Sarjeet Singh Thakur and damages to the car no. DL 9C T 1403 owned by Dr. Sarjeet Singh. It is also established that the respondent no.1 was driving the offending vehicle at the time of the accident in a manner so rash and negligent. It is an admitted position on record that the offending vehicle was owned by respondent no.2 and it was insured with respondent no.4.
I S S UE No. 3
14. It has been held in a catena of judgments that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair compensation and not a token amount. General principle in calculating such sum of compensation, should be so as to put the injured or legal heirs of a deceased in case of fatal accident, in the same position as he would have been, if accident had not taken place. Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 11 The amount of compensation no doubt cannot bring back the dead but it certainly helps the LR's and dependents to live life with dignity and comfort as they were living during the lifetime of the deceased. The amount of compensation is awarded on the basis of age, the earning capacity and other liabilities of the deceased. The appropriate method of calculating compensation in fatal cases is multiplier method. The Hon'ble Supreme Court in plethora of judgments has laid down that in India, the multiplier method is proper for calculation of compensation.
15. Starting point for calculating the amount of compensation to be paid to the dependents of the deceased in a motor accident claim is the amount of monthly income which the deceased was earning and the choice of multiplier is ascertained by the age of the deceased. In Petition No. 372/10
16. PW2 Sonali Jana has stated that her husband was 28 years of age at the time of accident and earning Rs. 7,000/ p.m. However, no documentary proof of income has been filed by petitioner with respect to the income of the deceased. In the absence of any documentary evidence on record, regard is to be had to the minimum wages prevailing at the time of accident with respect to a "skilled worker" as the deceased was a driver. The accident took place on 25.04.2009. As per the postmortem report the age of the deceased at the time of Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 12 accident was 29 years. The deceased was hale and hearty before the accident.
17. Hon'ble High Court of Delhi in case titled "Narender Bishal & Another V/s Sh. Ramit Singh & Ors." bearing MAC.App. No. 100708/2006 decided on 20th February 2008 had considered the law laid down by Hon'ble Supreme Court in "General Manazger Kerala Transport Road Corporation V/s. Susamma Thomas" reported as 1994 ACJ 1 (SC) as well as in Smt. Sarla Dixit & Ors. V/s Balwant Yadav & Ors. Reported as AIR 1996, SC1274" and held :
"As would be evident from catena of judgments of the Supreme Court, the future prospects have no correlation with the price index, inflation or denunciation of currency value. The future prospects would necessarily mean advancement in future career, earnings and progression in one's life. It could be considered by seeing, from which post a person began his career, what avenues or prospects he has while being in a particular avocation and what targets he/she would finally achieve at the end of his career. The promotional avenues, career progression, grant of selection grades etc. are some of the broad features for considering one's future prospects in one's career.
The minimum wage, in the very context of economy has a correlation with the growth and development of the nation's economy, postulating increase in the price index, reduction of purchasing power with the denunciation of currency value and consequent fixation of Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 13 minimum wages giving some periodical increase so as to ensure sustenance and survival of the workman class. Keeping this in view, under no circumstance the revision of minimum wages can be treated on the same footing with the factor of future prospects.
For instance, minimum wages of unskilled workman in the year 2000 were Rs.2524/ under the Minimum Wages Act. The said minimum wages in the year 2007 for the same class of unskilled workman came to be Rs.3470/ under the Act. This increase is not due to any promotion of unskilled workman or any kind of advancement in his career but the same are due to increase in price index and cost of living which are the determining factors taken into consideration for increasing the wages under the Minimum Wages Act. The nature of the job of unskilled workman will not change as the same shall remain unchanged. The same principle may be true even in the case of business or trade or other such allied activities where the future prospects of the deceased can be considered on the basis of his assets, income tax return, wealth tax return, balance sheet etc. But as far as the increase in the minimum wages is concerned the same takes into consideration the price index and the inflationary trends and the same have no correlation with the future prospects of a skilled, semiskilled or an unskilled workman."
18. Thus, future prospects are to be added for calculating the loss of dependency which as per the Sarla Verma Vs. DTC 2009 (6) Scale 129 Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 14 is taken as 50% of the gross income. The deceased was survived by his wife, minor son and mother. Out of his gross income and considering the fact that there are three legal heirs of the deceased, he by no stretch of imagination could have spent more than onethird of his earning on himself. The minimum wages as per the schedule is taken as Rs. 4358/ for a skilled person. Adding the future prospects and deducting onethird towards personal expenses and taking the multiplier as per Sarla Verma's case (Supra) as "17" the total loss of dependency would come to (12 x 4358 + 50% of Rs. 4358 x 12) 1/3rd of (12 x 4358 + 50% of Rs. 4358 x 12) x 17 = Rs. 8,89,032/ which is rounded off to Rs. 8,89,100/.
19. I therefore, award a sum of Rs. 8,89,100/ to the towards "Loss of Dependency".
COMPENSATION TOWARDS MEDICAL EXPENSES
20. PW2 has filed the medical bills Ex.PW2/6 (colly.) for Rs. 2386/ stating that after the accident her husband was taken to the hospital. He could not recover from the injuries and expired. I, award a sum of Rs. 2,400/ to the petitioner on account of Medical Expenses. COMPENSATION TOWARDS LOSS OF LOVE AND AFFECTION
21. The petitioners at this stage of life lost their husband/father/son. The Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 15 loss of love and affection which they would have got from the deceased can not be quantified in terms of money. It has been held by Hon'ble High Court of Delhi in the case titled as Kailash Kaur vs. New India Insurance Company bearing M.A.C. Pet.. No. 318/08 decided on 24.03.2009 that compensation towards loss of love and affection should be granted at the rate of Rs. 25,000/ per petitioner.
22. I therefore, award a sum of Rs 75,000/ (3 x 25,000) towards "Loss of Love and Affection".
COMPENSATION TOWARDS FUNERAL EXPENSES
23. I award a sum of Rs. 10,000/ to the petitioners on account of "Funeral Expenses".
COMPENSATION TOWARDS LOSS OF ESTATE
24. I award a sum of Rs. 10,000/ to the petitioners towards Loss of Estate.
COMPENSATION TOWARDS LOSS OF CONSORTIUM
25. I award a sum of Rs. 10,000/ to the petitioner no. 1 Sonali Jana towards Loss of Consortium.
26. Thus, the total compensation in favour of the petitioners is assessed as under : Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 16 LOSS OF DEPENDENCY : Rs. 8,89,100/ LOSS OF LOVE & AFFECTION : Rs. 75,000/ FUNERAL EXPENSES : Rs. 10,000/ LOSS OF ESTATE : Rs. 10,000/ LOSS OF CONSORTIUM : Rs. 10,000/ =========== Total : Rs. 9,94,100/ =========== Petition no. 379/10
27. The petitioner has claimed Rs. 10,00,000/ as compensation in respect of the injuries sustained by him. In a road accident a person is entitled to compensation for the pecuniary and nonpecuniary damages.
28. It has been held by Hon'ble Apex Court in R.O. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755 that : "Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as nonpecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 17 matters ie. on account of injury, the claimant may not be able to walk, run or sit ; (iii) damages for the loss of expectation of life, ie. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
Let me assess the compensation which the petitioner is entitled for under different heads.
COMPENSATION FOR EXPENSES INCURRED ON MEDICAL TREATMENT :
29. PW1 has stated that after the accident he was removed to JPN Trauma Centre, AIIMS by the PCR Van. He sustained head injuries, fracture in his right hand and leg with two teeth broken and blood clotting in head. He stated that his both lips have also cut down which resulted in facial disfigurement. He stated that on 03.07.09 a major brain surgery was conducted and he was discharged on 04.07.09. He remained under treatment for about 10 months and kept on visiting the hospital regularly. He has a risk of recurrence of clots of blood in his brain upto 40%. He stated that he has spent more than Rs. 35,000/ on the medical expenditure. He placed on record the original medical bills for Rs. 29,060/. He stated that out of the medical bills of Rs. 10,505/ submitted by him in his office only Rs.7,826/ were reimbursed to him. He placed on record the bills Ex.PW1/41 to Ex.PW1/67 and the treatment record. Looking into the injuries, medical bills and the documents I award a sum of Rs. 40,000/ to the petitioner on account of medical expenses / future expenses.
Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 18 COMPENSATION FOR PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
30. Testimony of PW1 shows that the petitioner sustained head injuries, fracture in his right hand and leg with two teeth broken and blood clotting in head. He had cut on his both lips which resulted in facial disfigurement. On 03.07.09 a major brain surgery was conducted and he was discharged on 04.07.09. He remained under treatment for about 10 months and kept on visiting the hospital regularly. He has a risk of recurrence of clots of blood in his brain upto 40%. Looking into the injuries and the facts and circumstances of the case, I award a sum of Rs. 60,000/ towards pain & sufferings.
COMPENSATION FOR SPECIAL DIET, ATTENDANT CHARGES AND CONVEYANCE CHARGES :
31. Testimony of PW1 reveals that he sustained head injuries, fracture in his right hand and leg with two teeth broken and blood clotting in head. He stated that on 03.07.09 a major brain surgery was conducted and he was discharged on 04.07.09. He remained under treatment for about 10 months and kept on visiting the hospital regularly. He has a risk of recurrence of clots of blood in his brain upto 40%. He has stated that he has spent Rs. 20,000/ on conveyance and Rs. 25,000/ on special diet. He remained on leave from 25.04.09 to 10.06.09. His wife is working. There was no one to look after him during his Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 19 treatment. Thus, he availed the services of an attendant Babu Ram for seven months and paid him Rs. 7,000/ p.m. Looking into the injuries and his followup treatment, I award a sum of Rs. 50,000/ towards attendant charges, conveyance and special diet. COMPENSATION FOR LOSS OF INCOME :
32. PW1 has stated that he was doing Basic Research in Biological Science at National Institute of Plant Genome Research Campus, JNU and was getting a gross salary of Rs. 41,000/ at the time of accident. He had to perform the experiments by standing on foot for long hours but due to the severe injuries he could not stand/work for long hours which adversely affected his job and research work. He remained on leave from 25.04.09 to 10.06.09. He was recommended further leave for four weeks because of his discomfort. He has filed the salary slip Ex.PW1/6869, Icard, SSC Certificate and Income Tax Return. On going through the salary slip Ex.PW1/66, I find that he used to be paid Rs. 3904/ as travelling allowances which amount is to be deducted from his gross salary which now comes to Rs. 33684 3904 = Rs. 29780/. Taking a period of three months which period he went on forced leave on account of accident, the loss of income is calculated as 3 x Rs. 29780 = Rs. 89340/ which is rounded off to Rs. 89,500/. I, therefore, award Rs. 89,500/ towards loss of income. Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 20 LOSS OF AMENITIES AND DISFIGUREMENT :
33. PW1 has stated that due to the head injury he has been disturbed.
The doctors have warned him regarding the risk of recurrence of clots in his brain upto 40%. For this reason he cannot go out of his home without an attendant. He is always in fear of driving and panic attacks. He stated that his both lips were also cut in the accident which resulted in his facial disfigurement. Keeping in view his inability to participate in normal activities of daily life, talents, interest, hobbies and disfigurement etc. I award a sum of Rs. 50,000/ towards Loss of Amenities and disfigurement.
34. Thus the total compensation in favour of the petitioner is assessed as under :
MEDICAL EXPENSES : Rs. 40,000/
PAIN & SUFFERINGS &
ENJOYMENT OF LIFE : Rs. 60,000/
SPEICAL DIET, ATTENDANT &
CONVEYANCE CHARGES : Rs. 50,000/
LOSS OF INCOME : Rs. 89,500/
LOSS OF AMENITIES &
DISFIGUREMENT : Rs. 50,000/
===========
TOTAL : Rs. 2,89,500/
===========
Petition no. 380/10
35. PW1 has stated that his car was badly damaged in the accident. It Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 21 was repaired for Rs. 1,82,582/. However, the insurance company has paid him Rs. 1,50,000/. He had to pay the balance amount of Rs. 34,163/. He could not use his car for eight months and used private taxi. He placed on record the photographs showing the damage to the car, repairing bills and payment Ex.PW1/77 (colly.). Keeping in view all these facts, I award a sum of Rs. 50,000/ towards the damages and the expenses incurred by the petitioner for using private taxi, towing it to the workshop and other miscellaneous expenses incurred on the car.
L I A B I L I T Y
36. As the offending vehicle was being driven by respondent No. 1 therefore primary liability to compensate the petitioner is that of respondent No. 1. As the offending vehicle was owned by respondent No. 2 therefore, he becomes vicariously liable to compensate the petitioner. The offending vehicle was insured with respondent no. 4 therefore, respondent no. 4 becomes contractually liable to compensate the petitioners for the above mentioned awarded amount to the extent of liability of the insured.
37. Ld. Counsel for the Insurance company, however, in his quest to have the Insurance company exonerated of its contractual obligation contended that the cheque towards the premium of insurance policy was dishonoured. So, the insurance company does not owe any Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 22 contractual liability to indemnify the insured. In support of his contention he referred the testimony of R4W1.
38. I have considered the submissions and perused the record.
39. R4W1 has stated that the company is not liable to pay any compensation as the offending vehicle was not insured on the date of accident. He stated that the cheque given by the insured had bounced on 25.04.09 due to insufficient funds as per the memo of the bank and the same was intimated to the insured vide letter dated 30.04.09. He proved the cheque return Ex.R4W1/2, the cheque Ex.R4W1/3 and intimation to the insured Ex.R4W1/4 about the dishonour of the cheque. He stated that they mention the mode of payment on the cover note before issuing the policy but admitted that the cheque number and date is not mentioned on the cover note Ex.PW1/78. He stated that the cover note was issued on 12.04.09 and generally they send the cheque to the bank for encashment within 23 days. He stated that on Ex.R4W1/2, the cheque amount is mentioned as Rs. 10838/, presentation date as 24.04.09 and return date as 25.04.09 for the reasons "insufficient funds". He stated that the policy is issued to the party even without realisation of the amount against the cheque. He stated that as per the document Ex.R4W1/1, the policy was signed at Mumbai on 28.04.09 in view of the cover note dated 12.04.09 Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 23 however, the said policy was never sent to the party. He stated that they do not have any proof as to whether the party was informed/served about dishonour of the premium cheque or as to whether the copy was served on the Regional Transport Authority.
40. Perusal of testimony of R4W1 reveals that the policy was not sent to the insured although signed in view of the cover note to the party. The cheque towards premium was dishonoured on account of "insufficient funds". Although R4W1 has stated that intimation was sent to the insured but he could not place any document to show of its acknowledgment by the insured or intimation to the Regional Transport Authority as to the nonissuance of policy to the insured on account of dishonour of the cheque towards premium. However, respondent no.1 has been able to establish that the cheque towards premium of the insurance policy was dishonoured. No evidence has been led by the owner/insured to disprove this fact.
41. In the instant case it has come on the record that respondent no.2 was the registered owner of the offending vehicle however, the cover note after receipt of premium through cheque was issued in the name of respondent no.3. As per Section 147 of Motor Vehicle Act, the liability of the registered owner continues till the vehicle is registered in his name even if the vehicle is sold / transferred. It was held in the case Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 24 of "Dr. T.V. Jose Vs. Chako 2002 (1) RCR (Civil) 120 (SC)" that there can be transfer of title by payment of consideration and the delivery of the vehicle but the owner still continues to remain liable to the third party as long as his name continues in the record of the R.T.O. Thus, the liability to compensate the petitioners due to cancellation of policy would be of respondent no.2.
42. Legislature being conscious of the magnitude of the plight of the victims of road accident have introduced the present beneficial provisions to protect the interest of third parties i.e. victims of road accident so as to enable them to claim compensation from the driver/ owner of the vehicle. Legislature in its wisdom has made it a statutory obligation of every owner to have his vehicle insured against third party risks. This has been made mandatory so that victims of road accident even after being granted compensation from the court, should not run from pillar to post to have the orders of the court executed and to facilitate them to get the same from the Insurance Company. It was held in the case of "National Insurance Co. Ltd. Vs. Vasdev Kukreja & Ors II (2010) ACC 148" that primary liability to pay the award amount is of insurance company. In that case there was a breach of terms and conditions of the policy as there was violation as to the category of the vehicle which the driver was authorised to drive. The Hon'ble High Court directed the insurance company to pay the Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 25 award and granted the recovery rights in its favour to recover the award amount from the owner of the offending vehicle.
43. Balancing the "twin interest" of the Insurance Company at one hand and that of the third party i.e. petitioner for whose benefit the present legislation was brought on the statute book, it is directed that the Insurance Company shall pay the compensation awarded to the petitioners within the time given in this award and shall have the right to recover the same from respondent No. 1 and respondent No. 2 jointly and severally.
R E L I E F
44. In view of my finding on the issues I, award a sum of Rs. 9,94,100/ (Petition no. 372/10), Rs. 2,89,500/ (Petition no. 379/10) and Rs. 50,000/ (Petition no. 380/10) as compensation with interest @ 9% per annum from the date of filing the petition till the date of its realization in favour of the petitioners and against the respondent no. 4 with a liberty to the respondent no.4 to recover the same from respondent no.1 and 2 jointly and severally.
In Petition No. : 372/10 : RELEASE OF THE AWARDED AMOUNT : In the share of Petitioner no.1 : (Smt. Sonali Jana, Widow of deceased)
45. A sum of Rs. 6,94,100/ alongwith the proportionate interest thereon, is awarded to petitioner no.1 being wife of deceased. Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 26
46. Out of this awarded amount, a sum of Rs. 5,00,000/ be deposited in the form of FDR in the name of petitioner no.1 in the following phased manner :
(a) A sum of Rs. 1,00,000/ for a period of 2 years
(b) A sum of Rs. 1,00,000/ for a period of 3 years.
(c) A sum of Rs. 1,00,000/ for a period of 4 years.
(d) A sum of Rs. 1,00,000/ for a period of 5 years.
(e) A sum of Rs. 1,00,000/ for a period of 6 years.
In the share of Petitioner No. 2 : (Yash Kumar, minor son of deceased)
47. A sum of Rs. 1,50,000/ alongwith proportionate interest thereon, is awarded to petitioner no. 2 being son of the deceased. This awarded amount shall be kept in the form of separate FDR's in the name of petitioner no. 2 till he attain the age of 18 years.
In the share of Petitioner No. 3 : (Smt. Bhopali Devi, Mother of deceased)
48. A sum of Rs. 1,50,000/ alongwith the proportionate interest thereon, is awarded to petitioner no. 3, being mother of deceased. Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
49. In terms of the directions given by Hon'ble High Court in case titled "
Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.20009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 27
50. As per orders of Hon'ble High Court in case titled " New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008" as well as in another case titled as " Union of India V/s Nanisiri" bearing M.A.C. Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants.
51. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble high Court, Insurance Company 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 respondent no. 4 Insurance Company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
52. 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:
(i) 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.
Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 28
(ii) 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.
(iii) No cheque book be issued to claimants / petitioners without the permission of this Court.
(iv) 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 FDR's .
(v) The original fixed deposit receipts shall be handed over to claimants / petitioners at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii)Half yearly statement of account be filed by the Bank in this Court.
(viii)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.
(ix) 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.
DIRECTIONS FOR THE RESPONDENT NO.4
53. The Respondent no. 4 is directed to file the compliance report of their Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 29 having deposited the awarded amount with State Bank of India, Saket Court Branch in this tribunal within a period of 30 days from today.
54. The Respondent no.4 is directed to furnish a copy of this award alongwith the cheques of the awarded amount to the Manager of State Bank of India, Saket Court Branch, so as to facilitate the Manager of State Bank of India, Saket Court Branch to have the identification of the claimants/ petitioners in whose favour the award has been passed.
55. The Respondent no. 4 is further directed to furnish the claim petition number and name of the parties at the back side of the cheques of the awarded amount, so that the same be not misplaced.
56. The Respondent no.4 shall intimate to the claimants / petitioners about their having deposited the cheques 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.
57. Copy of this award / judgment be given to the petitioners who are directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after their having received the notice of the deposit of awarded amount from the Insurance company.
Suit No. 372/10, 379/10 & 380/10 Sonali Jana Vs. Jit Lal 30
58. Copy of this Award / Judgment be given to counsel for the Insurance Company for necessary compliance.
59. File be consigned to record room.
Announced in the Open Court
on 06th Day of Februrary, 2012 (SANJIV JAIN)
Presiding Officer : MACT02
South Distt. : Saket Courts
New Delhi : 06.02.2012
Suit No. 372/10, 379/10 & 380/10