Delhi District Court
Smt. Bhulesh Devi W/O Late Sh. Jitender ... vs Sh. Vinod Kumar S/O Sh. Babu Lal on 8 August, 2013
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IN THE COURT OF MS. PREETI AGRAWAL GUPTA:
ADJCUMJUDGE MACT(1) (NORTH): ROHINI: DELHI
AMONGST 20 OLDEST CASES OF THE COURT:
Case No. 734/08
Unique Case ID no. 02404C0 211222007
1. Smt. Bhulesh Devi W/o Late Sh. Jitender Kumar
2. Master Abhishek Kumar S/o Late Jitender Kumar
3. Ishika Kumari D/o Late Jitender Kumar( Since deceased)
4. Sh. Daya Ram S/o Late Sh.Gopal Dass (Since deceased)
5. Smt. Angoori Devi W/o Sh. Daya Ram.
( petitioners no. 2 & 3 are minor under guardianship of
mother/petitioner no.1)
All r/o H.No. H.No. 10963, Pipalwali Gali, Idgah Road,
Motia Khan , New Delhi110055.
....Petitioners
Versus
1. Sh. Vinod Kumar S/o Sh. Babu Lal
R/o D546, Tagore Garden Extn. ( 80 sq. yds. Plots)
Near Central School, New Delhi110027.
2. The New India Assurance Company Ltd.
R/o Jeewan Bharti Building, II nd Floor,
10, Parliament Street, New Delhi110001
....Respondents
DATE OF INSTITUTION: 14.03.2006:
JUDGMENT RESERVED ON: 05.08.2013:
DATE OF JUDGMENT: 08.08.2013:
Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
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AWARD:
1. This is a petition U/S 163A of Motor Vehicles Act, 1988 filed by the petitioners being legal representatives of deceased seeking compensation for the accidental death of Jitender Kumar S/o Sh. Daya Ram. The original claim was filed by the widow and two minor children of the deceased alongwith parents of the deceased as claimants. However, during the pendency of the petition, both the parents of the deceased have expired. Hence, the claim shall survive for petitioners no. 1,2 & 3 as widow and minor children, upon whom, right to sue on behalf of petitioners no. 4 & 5 (parents) shall survive. The compensation to the extent of Rs. 7,82,800/ is claimed with interest .
2. According to the petitioners, on the unfortunate day of 04.11.05, Sh. Jitender Kumar was going on scooter bearing no. DL4SY6939 from Bawana to Tagore Garden, New Delhi under the supervision and control of respondent no. 1 when on reaching flyover Bridge, Ring Road, Mangolpuri, Delhi, suddenly an unknown vehicle hit the scooter of the deceased with a great force and due to this collusion, deceased received head injuries. After this impact, the deceased was removed to Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi and thereafter, remained admitted in Maharaja Agarsen Hospital, Punjabi Bagh, New Delhi but the deceased could not survive and succumbed to injuries in less than a week i.e. 10.11.05. The postmortem of deceased was Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
:3: conducted in Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi. FIR No. 755/05 U/s 279/337 IPC dt. 04.11.05 was lodged in police station, Mangolpuri, Delhi. In absence of any eye witness, the number of the offending vehicle could not be traced and the charge sheet U/s 173 Cr.P.C. was filed by the IO U/s 279/304A IPC as "untrace case" which was allowed by the MM concerned. Hence, the offending vehicle was not traced and the case has been filed U/s 163 A M.V.Act against the respondent no. 1/registered owner who was also the employer of deceased. The respondent no. 2 is the insurance company of the scooter owned by respondent no. 1, at the relevant time.
3. Respondents no.1 who is the ownercumdriver of the scooter in question, was served but he did not appear before the court to contest the petition. Respondent no. 2/insurance company has filed the written statement taking the legal objections that the insurance company is not liable to indemnify the alleged owner of the offending vehicle in question or to pay any compensation to the petitioners as the deceased Jitender Kumar was hit by an unknown vehicle while driving the insured scooter in question. It is further prayed that Insurance company shall be absolved from paying any compensation in case of any plea U/s 149 (2) Motor Vehicle Act or any other breach of the insurance policy is disclosed. The insurance company has also disputed the present claim on merits calling for strict proof of averments upon the Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
:4: petitioner and averred that the amount of compensation claimed is very exorbitant. It is, however, admitted that the vehicle i.e. Scooter bearing no. DL4SY6939 was duly insured as on the date of accident.
4. From the pleadings of the parties, the following issues were framed vide order dated 09.05.2007.
1. Whether on 04.11.05 scooter no. DL4SY6939 met with an accident with a unknown vehicle and it resulted in death of deceased Jitender Kumar? OPP.
2. Whether petitioners are entitled to compensation as prayed for, if so, from which of the respondent?OPP.
3. Relief.
5. The petitioner no.1 Smt.Bhulesh Devi wife of the deceased has examined herself as PW1 as L R only. She has deposed as per averments in the petition on the point of occurrence of the road accident in question, though, admittedly, she is not the eye witness. She has tendered the copy of driving licence of deceased is Ex.PW1/2 and copy of her own voter I card as Ex.PW1/3. The witness has deposed that deceased was working with Vinod Kumar, Contractor (who is respondent no. 1 in this petition) and was earning Rs,. 3300/ per month.
6. Witness has been crossexamined by Ld. Counsel for insurance company on the aspect of proof of income of the Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
:5: deceased. PW1 admitted that she did not have any proof of monthly salary of the deceased from his employer/respondent no.
1. PW1 has deposed in crossexamination that parents of the deceased have expired during the pendency of the petition and their death certificates are proved as Ex.PW1/DA & Ex.PW1/DB respectively.
7. PW 2 SI Badami Lal has tendered the "untraced report" of the FIR No. 755/05 PS Mangolpuri, Delhi, copy of the same is Ex.PW2/1. In crossexamination, PW2 has deposed that ACP has already forwarded the final untraced report U/s 172 of CR.P.C. and it has been presented before the concerned Metropolitan Magistrate. Thereafter the evidence of petitioners was closed.
8. None of the respondents have led any respondent's evidence. Respondent no. 1 is the owner of the scooter involved in the accident in question. Deceased in the present case has lost his life due to the road accident caused while travelling on the scooter owned by respondent no. 1 which was hit by an unknown offending vehicle causing him grave and fatal injuries resulting in his death. Respondent no. 1 has been made a party as owner of the scooter in question and it is the case of the petitioners that the deceased was employed with respondent no. 1 at the time of accident and that he was going for some work of respondent no. 1 at the relevant time. Respondent no. 1 has not participated in the petition to contest or defend the claim and has also not filed any Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
:6: written statement or led any evidence. As regards respondents no. 2/insurance company, despite legal objections, no evidence has been tendered in their support to show that the accident in question has been caused due to attributing factor by the deceased driving the scooter in question. No other legal breach U/s 149 (2) of M.V.Act has also been proved. In view of the above back ground, the respondent evidence was closed.
9. Ld. Counsel for the petitioner and ld. Counsel for respondent no. 2/insurance company have raised their respective arguments. The facts and circumstances of the case, evidence and material on record has been duly considered. Respective sides have relied upon the following judgments during the course of arguments. The case has been hotly contested between the petitioner and the insurance company on the question of "liability of the insurance company". The following judgments have been appreciated for each of the contested parties as under:
Noteable judgments relied upon by the petitioner:
1. Oriental Insurance Co. Ltd. Vs. Jumma Saha & Ors, 2007 ACJ
818.
2. Oriental Insurance Co. Ltd. Vs. Hansaraj Bhai V. Kodala & Ors. 2001 III AD (S.C.) 561= (2001) 5 SCC 175.
3. Oriental Insurance Co. Ltd. Vs. Davis , 2007 (1) T.A.C. 839 ( Ker.) Noteable judgments relied upon by the insurance company:
1. M/s HDFC Chubb General Insurance Co. Ltd. Vs. Shanti Devi Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
:7: Rajpal Singh Thakur Co. Ltd. in First Appeal No. 1861 of 2008.
2. Oriental Insurance Co. Ltd. Vs. Jumma Saha & Ors, 2007 ACJ
818.
3. New India Assurance Co. Ltd. Vs. Satbir alias Sukhbir & Ors. , 2002 ACJ 684.
4. New India Assurance Co, Bijapur Vs. Smt. Kusum & Ors. 2003 (3) T.A.C. 423 ( Kant.)
5. National Insurance Company Ltd. Vs. Sinitha & Ors. in Special Leave Petition (C) No. 6513 of 2007.
10. The applicable legal aspects of the judgment relied upon by the respective parties has been duly appreciated. The issuewise findings are as below:
ISSUE NO. 1: Whether on 04.11.05 scooter no. DL4SY6939 met with an accident with a unknown vehicle and it resulted in death of deceased Jitender Kumar? OPP.
11. The present case has been filed by the petitioners who are legal heirs of the deceased U/s 163 A of Motor Vehicles Act which are special provisions relating to the payment of compensation on structure formula basis. According to the petitioners, on 04.11.05, when the deceased Jitender Kumar was going on scooter , he was hit by an unknown vehicle with great force at Flyover Bridge, Ring Road, Mangolpuri, Delhi which caused to fall and received fatal head injuries. The victim in Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
:8: question was first taken to Sanjay Gandhi Memorial Hospital from where he was shifted to Maharaja Aggarsen Hospital but the deceased succumbed by injuries within less than a week i.e. 10.11.05. The postmortem was conducted at Sanjay Gandhi Memorial Hospital which is form part of Ex.PW2/1.
12. The claim is being perused U/s 163A , M.V.Act with the averments that the deceased aged about 28 years was in private employment with respondent no. 1 and was earning Rs. 3,300/ per month. It is the case putforth by PW1 that the deceased was working under the supervision and control of respondent no. 1 and was going on the scooter of his employer/ respondent no. 1 at the time of accident.
13. As such, respondent no. 1/owner of the offending vehicle has not contested the petition. Respondent no.2/insurance company has admitted that the alleged vehicle was duly insured with it in favour of the respondent no. 1/registered owner of the offending vehicle in question. As observed above, the insurance company has denied its liability towards the claim on the ground that it is not liable for any compensation as the owner/respondent no. 1 had not paid any additional premium for the coverage of driver ( other than the owner). It has denied the statutory liability to pay any compensation in the present case on the ground that the deceased was not " a third party" for the purpose of section 147 M.V.Act . No other breach in terms and conditions of insurance Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
:9: policy, as per law, has been claimed by the insurer.
14. The fact that the victim Jitender Kumar suffered the accident in question on 04.11.05, while going on scooter which was hit by an unknown vehicle owned by respondent no. 2, is not a disputed fact, by any of the parties. It is established that FIR No. 755/05 U/s 279/337 IPC , P.S.Mangolpuri was registered and the victim Jitender Kumar succumbed to his fatal injuries at Maharaja Agarsen Hospital on 10.11.05. Untraced report U/s 279/304A IPC is Ex.PW2/1 wherein it has been recorded that the vehicle of the deceased was hit by an unknown vehicle causing him fatal injuries. The factum of involvement of the scooter owned by the respondent no. 1 has been duly proved and not denied by any of the respondents. The postmortem of the deceased relied upon collectively in Ex.PW2/1 corroborates the fact of accident on 04.11.2005 and cause of death of the victim Jitender on 10.11.05 due to head injuries sustained by the deceased in the road accident in question. It is, therefore, established that the deceased Jitender sustained fatal injuries in the motor accident caused while driving scooter in question which was hit by an unknown vehicle and that road accident in question caused such fatal injuries which resulted in his death.
15. The present case has been persued U/s 163A of Motor Vehicles Act which are special provisions relating to the Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
:10: payment of compensation on structured formula basis. The Hon'ble Supreme Court of India duly considered the law in Oriental Insurance Company Ltd. VS. Hansraj Bhai Vs. Kodala ; (2001) 5 SCC 175 ( relied upon the petitioner). The Hon'ble Apex Court observed that these provisions are applicable to a special category of victim having annual income of not more than Rs.40,000/ ( forty thousand ) and that ,too , without proving the negligence of the driver of the vehicle involved by virtue of a beneficial legislation enacted for that purpose and is governed by Second Schedule of the Act. However, the claim U/s 163A of the Act restricts the claim of compensation U/s 140 M. V. Act which is based upon the principle of "no fault" liability. The compensation payable U/s 163 A is in alternative to determination of compensation U/s 168 of the Motor Vehicle Act. If a claim is filed U/s 168 r/w 166 M. V. Act wherein the aspect of "neglect, wrongful act or default" of the offending vehicle is to be pleaded and established, the compensation was payable U/s 140 of the Act without the necessity of establishing any wrongful act, neglect or default of the offending vehicle/person responsible for death or disablement. Under Section 141(3) of the Act, if a person gets the compensation on principle of fault liability , then legal provision has been made for adjustment of compensation received U/s 140 M. V. Act. There is no such provision of adjustment of Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
:11: compensation received U/s 163A from the compensation receivable "under the Act" on the principle of fault. Therefore, the scheme of compensation U/s 163A of Motor Vehicle Act is to draw out a compensation based on structured formula for getting the relief to the claimants at the earliest. The scheme of legislature U/s 163A of M. V. Act is clearly in alternative to the determination of compensation U/s 168 M. V. Act on fault basis under the Act. The Hon'ble Supreme Court further appreciated the law for payment of compensation U/s 163A of the Motor Vehicle Act, after duly considering the scheme of other provisions in the Act. It was held that compensation payable U/s 163A of the Act was not an interim measure, but was final.
16. The above preposition of law has been duly appreciated as the law of the land in National Insurance Co. ltd. Vs. Sinitha & Ors. in Special Leave Petition (C) No. 6513 of 2007 ( relied upon the insurance company) by the Hon'ble Supreme Court of India. The Hon'ble Apex Court further developed the law on the issue "whether a claim for compensation made U/s 163 A of the Act , can be defeated either by the owner or by the Insurance company, by pleading and establishing, that the accident in question was based on the `negligence' fault or default". It was further discussed "whether a claim made u/s 163A of the Act is a claim under the fault liability principle or under the no fault Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
:12: liability principle".After appreciating the various provisions under the M. V. Act, the binding legal position has been concluded by the Hon'ble Apex Court in National Insurance Co. Ltd. Vs. Sinitha & Ors. (Supra) that:
"Section 163A of the Act has an overriding effect on all other provisions of the Motor Vehicles Act, 1988... that there is no basis for inferring that Section 163A of the Act is founded under the "nofault" liability principle....... that on the conjoint reading of Sections 140 and 163A, the legislative intent is clear, namely, that a claim for compensation raised under section 163A of the Act, need not be based on pleadings or proof at the hands of the claimants showing absence of "wrongful act", being "neglect" or "default"....... however, it is open to the owner or insurance company, as the case may be, to defeat a claim under Section 163A of the Act by pleading and establishing through cogent evidence a "fault" ground ("wrongful act" or "neglect" or "default"). It is, therefore, doubtless, that Section 163A of the Act is founded under the "fault" liability principle."
17. In the present case, it shall be relevant to mention Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
:13: that although, only bald defence has been raised by Respondent no. 2/driver about the "fault or neglect" of driving of the scooter by the victim but no supporting evidence or evidence has been led on this point. As hereinabove discussed as the law of the land laid down by the Hon'ble Supreme Court of India, the present claim U/s 163A of the Motor Vehicle Act is based upon the claim of compensation on the structured formula basis and is governed by the Second Schedule of the Act . These provisions are applicable to special category of victims where the claim is restricted to the annual income of the deceased for not more than Rs. 40,000/ . The claimants have alleged that the accident was caused due to rash and negligent driving of the unknown vehicle while the deceased was going on the scooter owned by respondent no. 1. No evidence has been led any evidence to show or prove `wrongful act, neglect or default', to defeat the claim of the claimants. The factual position emerging from the evidence on record does not reflect any 'negligence' at the hands of the victim. As discussed above in the claim raised U/s 163A of the Act, the claimants have neither to plead nor to establish negligence. The negligence can be established by the owner or the insurance company to defeat a claim U/s 163 A of the Act. It is , therefore, imperative for the respondents/insurance to not only plead negligence but also to establish the same through cogent evidence. There is nothing in cross examination of petitioners Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
:14: witnesses to contradict the factual position of occurrence of the accident and no affirmative evidence in defence has been led by the respondents to show that the victim was negligent when the accident occurred. In view of the facts and circumstances, it is duly established that the deceased Jitender sustained fatal injuries in motor accident caused by an unknown vehicle on 04.11.2005 at about 12.05 p.m near Flyover Bridge, Ring Road, Mangolpuri, Delhi.
ISSUE NO.2:
Whether petitioners are entitled to compensation? If so, to what amount and from whom?
18. This petition under adjudication U/s 163A of Motor Vehicles Act has been filed by the petitioners as legal representatives of the deceased Jitender. In this claim, petitioner no. 1 is the widow of the deceased and petitioners no. 2 & 3 are two minor children i.e. Master Abhishek Kumar ( son) and Ishika Kumar (daughter) respectively. Petitioners no. 4 & 5 were the parents of the deceased who were also the claimants being L Rs. However, both the petitioners no. 4 & 5 have expired during the pendency of the petition and their death certificates are duly proved as Ex.PW1/DA & Ex.PW1/DB. Hence, the petitioners no. 1 to 3 are the surviving L Rs of the deceased.
19. At this stage, before examining the quantum of compensation , it is relevant and important to determine the Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
:15: entitlement of the petitioners to claim the compensation in respect of the road accident in question. The insurance company has denied its liability on the ground that the deceased would not be covered as a "third party" for the purpose of claiming the compensation U/s 147 M.V.Act . It is the cased of the insurance company that the insured/Respondent no. 1 who is the owner of scooter involved in the accident did not pay any extra premium and further that the insurer cover was not a "comprehensive policy". It is contended for the insurance company that the insurance company is not liable towards the L Rs of the deceased as the insurance cover was under the category "Act only policy". The contention of insurance company is sought to be supported by the pronouncement of Hon'ble Supreme Court in Oriental Insurance Co. Ltd. Vs. Jumma Saha & Ors., 2007 ACJ 818. Reliance has also been placed upon New India Assurance Co. Bijapur Vs. Smt. Kusum & Ors. 2003 (3) T.A.C. 423 ( Kant.) to claim that the insurance company is not liable to pay compensation to gratuitous passengers carried in private service vehicles. It has been further argued that it is well settled position that the insurance company is not liable to indemnify the owner for death of gratuitous driver of the insured vehicle while placing reliance upon M/s HDFC Chubb General Insurance Co.Ltd. Vs. Shanti Devi RajPal Thakur Co. Ltd. in First Appeal No. 1861 of 2008.
20. The authorities and laws relied upon by the insurance Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
:16: company have been duly appreciated. The provision U/s 147 M.V.Act have been carefully perused. The legal position , as laid down in Oriental Insurance Co. Ltd. Vs. Jumma Saha & Ors., 2007 ACJ 818 is well settled law of the land and is equally applicable to support the case of the petitioners. It has been held that that " section 147B of the Act which covers the risk of third party would be attracted where additional premium in respect of entire risk to death or bodily injury of the owner of the vehicle has not been paid. It has been held that the insurance company shall be liable to the extent of indemnification of insured against the respondents or injured person, third person or in respect of damages of property." In the present case, the claimants are claiming is the category of "third party" and not in capacity of insured/owner.
21. Both these authorities and legal position have been further explained in M/s HDFC Chubb General Insurance Co.Ltd. Vs. Shanti Devi RajPal Thakur Co. Ltd. in First Appeal No. 1861 of 2008. In this judgment, Hon'ble High Court of Bombay has laid down and clarified that the insurance company is not liable to indemnify the owner in the death of gratuitous driver of the insured vehicle as a victim in cases where the victim was not otherwise covered under Workmen's Compensation Act.
22. The legal position, in the facts of the case has been further appreciated. The law laid in Oriental Insurance Co. Ltd. Vs. Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
:17: Hansraj Bhai V. Kodala & Ors. 2001 III AD (S.C.) 561 = (2001) 5 SCC 175, holds good and as force of binding law on the aspect U/s 167 M.V.Act visàvis Section 163A of the Act. It has been held that "expanding notions of social security are envisaged with the liability to pay must be "no fault liability". It has been further explained that "the provisions of Motor Vehicle Act should be interpreted and applied on the principles of beneficial interpretation in favour of the claimants". It has been further held in Oriental Insurance Co. Ltd. Vs. Davis , 2007 (1) T.A.C. 839 ( Ker.) that "the proviso of section 147 (1) M.V.Act envisages the legislative intend as also in Section 3 of Workmen's Compensation Act that these are beneficial legislations with a social objective that they are to be interpreted in favour of those for whose benefit, they have been enacted." The Hon'ble High Court, was pleased to further interpret Section 3 (i) of Workmen's Compensation Act and Section 147 (1) of M.V. Act and held that "injuries sustained while driving the vehicle though, injured workman was not employee as a driver shall be covered within the meaning of the word "engaged" in Clause (a) of Proviso (i) of Section 147 M.V.Act. It has been further that "the legislative intend is cleared that any injury sustained by an employee during the course of his employment as per compensation if bodily injury or death has occasioned during his engagement in driving the vehicle."
Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
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23. After comprehensive and harmonious reading of various legal provisions applicable to the facts of the present case, in light of the law held and developed by Hon'ble Superior Courts, the victim /deceased in the present case was driving the scooter owned by respondent no. 1, while under his employment. The testimony of PW1 is duly proved in this regard and there is no contradictions or breach to doubt the fact of employment of the deceased with respondent no. 1, at the time of accident. Therefore, by virtue of section 147 M.V.Act , the LRs of the deceased are entitled to claim compensation before this Tribunal for pursuing the claim for death caused to the victim in the road accident in question. The deceased shall be well covered within the meaning "third party" and that shall be covered and that he was not a gratuitous driver of the insured scooter in question. Hence, the insurance company shall be liable to indemnify as owner ( respondent no. 1) for the death of victim who is well covered as an employee of the owner of the insured vehicle. As per law laid down in Oriental Insurance Co. Ltd. Vs. Davis, 2007 (1) T.A.C. 839 ( Ker.), the victim in this case shall be covered for the purpose of provision of section 147 (1) of M.V.Act . The Hon'ble Supreme Court of India in Jumma Shah's case( Supra) has clearly held that the insurer and insured is second party and all others are covered under the third party. As per law, the insurance company cannot claim payment of any additional premium or necessity Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
:19: of comprehensive policy for the purposes of discharging its liability towards the L Rs of the victim in the road accident in question as victim is not covered within the meaning and purpose of word "owner" as contended by the insurance company.
24. In view of above reasons and discussion, the petitioners are entitled to claim compensation for death caused in the road accident in question. Respondent no.2/insurance company is statutory liable to indemnify respondent no. 1/owner of the vehicle in question, as per law.
25. Now we shall determine the extent and quantum of compensation payable of the L Rs of the deceased. It is the case of the claimants that deceased Jitender was 28 years at the time of accident and that the petitioners were financially and emotionally dependent upon the deceased. The claimants are required to prove their individual entitlement to get compensation due to untimely death of the victim Jitender. Under section 163A of M. V. Act, the entitled claimants shall get compensation on the structured formula basis whereby annual income of the victim shall not exceed Rs.40,000/ as notified in the Second Schedule of the Act. The amount of compensation, therefore, will be determined in accordance with the Second Schedule of the Act.
26. It is case of the claimants that the deceased was earning Rs.
3,300/ per month and since the present petition arises by virtue of Section 163A Motor Vehicle Act, the claim of the deceased has Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
:20: to be restricted to the annual income of not more than Rs. 40,000/ per month as per the Second Schedule of the Act. The monthly income of the deceased has been claimed at Rs. 3,300/ per month so that his annual income is Rs. 39,600/ , being less than Rs. 40,000/. For the purpose of age of the deceased, Ex. PW1/2 which is the Driving licence of the deceased duly proved/ corroborates the recording of the age of the victim in the post mortem report as 2728 years, as claimed by the petitioners. The age of the deceased shall be taken as 28 years, as claimed by the petitioners. The deceased was married and has two minor children and hence, the multiplier shall be determined as per the age of the deceased. As the petitioner was aged 28 years, the appropriate multiplier of 18 has to be applied to compute his loss of earning capacity, as per the SECOND SCHEDULE FOR COMPENSATION FOR THIRD PARTY FATAL ACCIDENT CLAIMS U/s 163A.
27. As already discussed hereinabove, the annual loss of income of the deceased has been computed as Rs. 39,600/. Therefore, the loss of earning capacity comes to Rs.7,12,800/ (Rs. 39,600 x 18).
28. In the facts of the case, as the deceased has two minor children and widow as dependents, as per law , 1/3rd is to be deducted towards personal and living expenses from the income of the deceased. The loss of dependency is , therefore, calculated Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
:21: at Rs. 4,75,200/ (Rs. 7,12,800/ less 2,37,600/).
29. The petitioners shall be entitled to an amount of Rs 15,000/ towards funeral and miscellaneous expenses which the petitioners had to incur due to the death of deceased.
30. Relying upon the judgment titled Smt. Sarla Verma & Ors Vs Delhi Transport Corporation & Anr. (Supra), an amount of Rs. 10,000/ is granted towards loss of estate. The widow and children of the deceased are also entitled for compensation on account of loss of love and affection. Under this head a consolidated sum of Rs. 25,000/ is granted to them, as per law. The widow shall also be entitled of compensation for loss of consortium and Rs. 10,000/ is granted against this head.
Thus, the total compensation awarded to petitioners is detailed as below:
1. Loss of dependency Rs . 4,75,200/
2. Funeral expenses Rs. 15,000/
3. Loss of estate Rs. 10,000/
4. Loss of love and affection Rs. 25,000/
5. Loss of consortium Rs. 10,000/ Total awarded compensation Rs 5,35 ,200/
31. So far as the liability to pay compensation is concerned, there is no violation of terms and conditions of the Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
:22: insurance policy. It has already been discussed hereinabove, on the aspect of entitlement of the petitioner and statutory liability of the insurance company towards the L Rs of the deceased. It has also been discussed in this issue hereinabove, that the insurance company is liable to indemnify respondent no. 1 /owner of the vehicle in question towards the LRs of the deceased. Compensation is hence, payable by respondent no. 2 being insurer, as vehicle was duly insured as on the date of accident. The issue is disposed of accordingly.
RELIEF:
32. In view of the aforesaid discussions, I hereby hold that petitioners are entitled to a sum of Rs. 5,35,200/ along with interest @ 7.5% per annum from 09.05.07 till the realization ( vide orders of the court dt. 09.05.07, the restoration application of the petitioner was allowed subject to disentitlement of interest for the past period ).
33. In view of the guidelines issued by Hon'ble Supreme Court of India in "General Manager, Kerala State RTC Vs. Mrs. Susamma Thomas and Others" for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation, the respondent No.2/insurance company shall be liable to pay awarded amount to the petitioners in terms of the Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
:23: following arrangement as ordered below:
34. Out of the award, 50 % of the awarded amount is granted to petitioner no. 1/wife and 50 % to petitioner no.2 & 3 who are minor children in equal shares to be divided between them.
35. Out of the respective share of petitioner no. 1, 75% alongwith proportionate interest shall be held in fixed deposits for a period of two years, three years & five years in equal proportion. Rest 25% along with proportionate interest be released to petitioner no. 1.
36. The entire share of minor children ( petitioner no. 2 & 3 ) be kept in an FDR till they attain the age of majority. The mother/petitioner no. 1 shall have liberty to withdraw interest from the FDR of the children.
37. The FDR's shall have no facility of loan advance or premature withdrawal, without leave of the court. However, petitioner no. 1 shall have the facility to withdraw the interest monthly/quarterly as per her option.
38. In view of the aforesaid findings and in terms of the award /order of this court, the petition is disposed off in aforesaid terms. Respondent no. 2 is directed to deposit the cheques in the names of the claimants within 30 days before this Tribunal. Respondent No.2 is also directed to furnish certificate of TDS if applicable. File be consigned to Record Room.
ANNOUNCED IN THE OPEN (PREETI AGRAWAL GUPTA)
COURT ON 08.08.2013 JUDGE MACT: ROHINI
(NORTH): DELHI
Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.
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Suit No. 734/08
08.08.2013:
Present: None.
Vide separate detailed award, dictated and announced in the
court today, an award in sum of Rs. 5,35,200/ alongwith interest
payable from the date of petition is hereby passed in favour of the
petitioners and against the respondents with liability to pay upon the respondent no. 2/ insurance company. Respondent No.2 is directed to deposit the cheque in terms of the award within 30 days before this Tribunal. Petition is disposed of in aforesaid terms. File be consigned to Record Room.
(PREETI AGRAWAL GUPTA) JUDGE MACT: ROHINI (NORTH): DELHI Suit No. 734/08 Bhulesh Devi Vs. Vinod Kumar.