Delhi District Court
Smt. Rita Devi ......Wife vs Hayat Khan S/O. Sh. Mustaq Khan on 10 December, 2014
IN THE COURT OF MS. RAVINDER BEDI : PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL : KARKARDOOMA
COURTS : EAST DISTRICT : DELHI
Suit No : 327/11
Unique Case ID No: 02402C0 309282011
1. Smt. Rita Devi ......Wife
2.Ms. Kajal ...... Daughter
3. Master Kishan Mohan .......Son
4. Durga Devi W/o Sh. Lal Bihari ......Mother
All R/o. G - 42, Block - G,
Gazipur, Village, Delhi. .........PETITIONERS
VERSUS
1. Hayat Khan S/o. Sh. Mustaq Khan
R/o. 244/61A, Gali No. 7, School Block,
Madhu Vihar, Delhi - 110092. ....Driver
2. M/s. J.K. Cement Limited,
Galib Institute, 1st Floor,
Mata Sundri Lane, Minto Road,
New Delhi .....Owner
3. Bharti AXA General Insurance Co. Ltd.
Bijose Tower, A - 8, Second Floor,
Netaji Subhash Place, New Delhi - 110 001 ....Insurer
.....RESPONDENTS
MAC Petition No. 327/11 Rita Devi V/s. Hayat Khan & Ors. Page : 1/14 Date of institution : 14.07.2011 Reserved for orders : 08.12.2014 Date of Award : 10.12.2014 A W A R D
1. The petitioners have filed present claim petition under Section 166 & Section 140 of M.V. Act claiming compensation of Rs. 30,00,000/ (Rupees Thirty Lac only) for the death of Chandra Prakash in the road accident which occurred on 20.06.2011.
2. The facts as stated in the Petition are that on 20.06.2011, Deceased Chandra Prakash was going on foot. As he reached near Jal Board Office, PS Madhu Vihar, a vehicle i.e., Motorcycle bearing no. DL6SAE1911 driven by respondent no.1, coming at fast speed and negligent manner, hit him with great force, as a result of which he fell down and suffered serious injuries. He was taken to LBS Hospital. However, the injuries proved Fatal to him. A case FIR no. 163/11 U/s 279/304A IPC was registered at Police Station Madhu Vihar against respondent no. 1.
3. It is stated that due to untimely death of deceased, the petitioners and other relatives faced great mental shock, pain and agony. It is stated that the deceased left behind his wife, two minor children and his mother.
4. It is stated that the respondent no.1 is the driver, the respondent no. 2 is MAC Petition No. 327/11 Rita Devi V/s. Hayat Khan & Ors. Page : 2/14 the Insured and respondent no. 3 is the insurer and all are jointly and severally liable to pay compensation to the petitioners.
5. The respondent no. 1 in his Written Statement stated that deceased was trying to cross the road and was hit by 3 4 speeding cars, passing there from and fell down; that respondent no. 1 was also going nearby on his motorcycle and applied brakes, due to which his motorcycle dashed against a car coming from behind; that respondent no. 1 on humanitarian grounds took the deceased to LBS for Medical Treatment; that respondent no. 1 was falsely implicated by the petitioners. Similar is the version of respondent no. 2, who stated that respondent no. 1 was the contract employee of respondent no. 2 and that had no accident took place with the motorcycle in question.
6. The respondent no. 3 in its Written Statement has admitted that the offending vehicle no. DL6SAE1911 was insured with it vide valid policy issued in the name of respondent no. 2 for a period from 27.06.2010 to 26.06.2011.
7. On the basis of the pleadings, following issues were framed by Ld. Predecessor vide order dated 22.02.2013:
i)Whether the petitioners are the LRs of deceased Sh.
Chandra Prakash?
MAC Petition No. 327/11 Rita Devi V/s. Hayat Khan & Ors. Page : 3/14 ii.)Whether petitioners prove that Chandra Prakash suffered fatal injuries in a road accident on 20.06.2011 involving vehicle i.e., motorcycle bearing registration no. DL6SAE1911 driven by respondent no.1 in a rash and negligent manner? (OPP)
iii)To what amount of compensation, if any, the petitioner is entitled to and from whom? OPP
iv) Relief.
8. Smt. Rita Devi, Wife of deceased appeared as PW1 and filed her affidavit Ex. PW1/A stating therein the facts as stated by her in the petition. She relied upon the documents i.e. MLC as Ex. PW1/1, PM Report as Ex. PW1/2, her Election I Card as Ex. PW1/3, Death certificate of deceased as Ex.PW1/4 and Election I Card of her motherinlaw as Ex. PW1/5.
9. The respondent no. 1 examined himself as R1W1 by way of an affidavit. Sh. Jagdish Kumar, Senior Analyst Legal Claims for Insurance Company was examined as R3W1, who has relied upon the documents i.e., Authority Letter in his favour as Ex. R3W1/1 and Insurance Policy as Ex. R3W1/2.
10.I have heard Ld. Counsels for parties, perused the entire material MAC Petition No. 327/11 Rita Devi V/s. Hayat Khan & Ors. Page : 4/14 carefully in the light of relevant statutory provisions of law and my observations on the issues are as follows : ISSUE NO. 1 :
i)Whether the petitioners are the LRs of deceased Sh.
Chandra Prakash?
11.In order to decide this issue, the testimony of PW1 Wife of deceased is relevant. PW1 has exhibited the Voter I Card of herself and her mother in law and also placed on record the Certificate from Mukhiya, Gram Panchayat Raj, Distt. Madhubani dated 15.05.2013 as Mark Y which mentions the names of the Legal Representatives of deceased. Her testimony is further corroborated by the DAR filed by IO wherein the names of all the petitioners have been specified as legal heirs of deceased. On the other hand, no contra evidence has been brought on record by respondents. In such circumstances, there is no reason to disbelieve the testimony of PW1. Therefore, I hold that petitioners are the only legal representatives of the deceased. This issue is decided accordingly.
ISSUE NO. 2 :
ii)Whether petitioners prove that Chandra Prakash suffered fatal injuries in a road accident on 20.06.2011 involving vehicle i.e., motorcycle bearing registration MAC Petition No. 327/11 Rita Devi V/s. Hayat Khan & Ors. Page : 5/14 no. DL6SAE1911 driven by respondent no.1 in a rash and negligent manner? (OPP)
12.PW1 has deposed that on 20.06.2011, her husband Late Chandra Prakash, who was going on foot, was hit by the Motorcycle bearing no. DL6SAE1911 driven by respondent no.1, rashly and negligently. She deposed that her husband was taken to LBS Hospital and then, was referred to GTB Hospital and in the course of treatment, he expired on 22.06.2011. The Postmortem Report 816A/11 was prepared at Guru Teg Bahadur Hospital as per which the cause of death was opined as Cardiopulmonary Arrest and Head Injuries produced by blunt force impact.
13.I have looked into the criminal case record and chargesheet. The FIR was registered on the DD entry no. 26A. The facts are supported and corroborated by IO of the case who had conducted the investigation and filed chargesheet against respondent no. 1. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Hon'ble Supreme Court held that in a petition under Section 166 of the Act, the petitioners were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of MAC Petition No. 327/11 Rita Devi V/s. Hayat Khan & Ors. Page : 6/14 the report is extracted hereunder :
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the petitioners. The petitioners were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
14.The report in Bimla Devi (Supra) was relied on by the Hon'ble Supreme Court in its latest judgment in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."
15.In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors. : 2009 ACJ 287, the Hon'ble High Court of Delhi has held:
"......... On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced:
(i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet under Sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was MAC Petition No. 327/11 Rita Devi V/s. Hayat Khan & Ors. Page : 7/14 negligent. Proceedings under the Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver".
16.In case Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh :
2009 (3) AD (Delhi) 310. It was noted that there was nothing on record to show that the petitioners had any enmity with the driver of the offending vehicle so as to falsely implicate him in the case. The Driver appeared as R1W1 and filed an Affidavit Ex. R1W1/A. He pleaded his false implication. However, he did not file any complaint or gave any legal Representation of his alleged false implication moreso, when he is facing trial as an accused in case FIR no. 162/11 u/s. 279/304A before the Court of Ld. MM, which impels me to conclude that his version given in affidavit is not worthy of credence.
17.The issue thus stands decided in favour of petitioners holding that the accident happened as a result of negligent driving by respondent no.1 in which deceased Chandra Prakash received fatal injuries.
ISSUE NO.3 :
To what amount of compensation, if any, the petitioners are entitled to and from whom?OPP MAC Petition No. 327/11 Rita Devi V/s. Hayat Khan & Ors. Page : 8/14
18.PW1, Wife of deceased, stated that her husband was working as a Labourer and was earning Rs. 8,000/ per month. As per the Voter I Card of the deceased, his age is shown as 32 years as on 01.01.2011. The age of deceased, thus, is taken as 32 years.
19.In the absence of any material, in respect of the avocation or the earnings having proved on record, the minimum wages prevalent at the relevant time, can be taken into consideration. Therefore, the monthly income of deceased is taken as Rs. 6,422/. Relying upon the judgment of Rajesh & Ors. Vs. Rajbir Singh & Ors., 2013 (6) SC 563 and ICICI Lombard General Insurance Company Vs. Angrez Singh & Ors., MAC: APP No. 846/11 dated 30.09.2011, the petitioners are entitled for addition of 50% increase in income, while assessing the future prospects and thus, after adding 50% it comes to Rs. 9,633.00 (Rs.6,422.00 + Rs.3,211.00).
20.The deceased was married and aged 32 years at the time of accident. All the petitioners would be considered to be the dependents in view of "Sarla Verma & Ors. V/s. DTC & Anr. (2009) ACJ 1298". Thus, 1/4th from income of deceased has to be deducted towards his living expenses. After deduction, the contribution to the family (dependent) comes to Rs. 7,225.00 (Rs.9,633.00 - Rs. 2,408 i.e. 1/4th ). In view of judgments rendered in Mohd. Hasnain & Ors. Vs. Jayram Meena & Ors. and in MAC Petition No. 327/11 Rita Devi V/s. Hayat Khan & Ors. Page : 9/14 "Cholamandalam M.S. General Insurance Company V/s. Issak Khan & Ors." (Both decided by Hon'ble High Court of Delhi on 24.03.2014 and 26.03.2014 respectively) and of Hon'ble Apex Court in P.S. Somanathan & Ors. V/s. District Insurance Office & Anr. (2011 ACJ
737), while assessing the dependency, the age of deceased is to be taken for selecting the correct multiplier. The multiplier applicable would be
16. Thus, the compensation under the head Loss of Dependency would be Rs. 13,87,200.00 (Rs. 7,225X 16X12).
21.The petitioners are also entitled to a sum of Rs. 1,00,000/ towards loss of love and affection, Rs. 1,00,000/ towards consortium, Rs. 10,000/ towards loss of Estate and Rs. 25,000/ towards funeral expenses.
22.The petitioners are entitled for the total amount of compensation towards all the heads, which is as follows : S. No. On Account of Amount (Rs.) 1 Loss of dependency Rs.13,87,200.00 2 Loss of Love and affection Rs.1,00,000.00 3 Funeral Expenses Rs. 25,000.00 4 Loss of Estate Rs. 10,000.00 5 Loss of consortium Rs. 1,00,000.00 Total Rs. 16,22,200.00 MAC Petition No. 327/11 Rita Devi V/s. Hayat Khan & Ors. Page : 10/14
23. I accordingly award an amount of compensation of Rs. 16,22,200/ in favour of the petitioners and against respondents.
LIABILITY :
24.Sh. Jagdish Kumar, Senior Analyst (Legal) for Insurance Company was examined as R3W1, who has relied upon the documents i.e., Authority Letter in his favour as Ex. R3W1/1 and Insurance Policy as Ex. R3W1/2. The plea of the Insurance Company is that the driver of the offending vehicle was under the influence of liquor. Per contra, the contents of chargesheet would reveal the driver was chargesheeted for the offences u/s. 279/304A IPC only and was not found liable under Section 195 MV Act as MLC result of the Driver mentions "Smell of alcohol as +ve". It is settled law that mere smell of alcohol in the breath cannot be taken as sacrosanct to hold that the driver was driving the vehicle under the influence of alcohol. The Medical Report of the Doctor does not lead to conclusion that the driver being in an inebriated condition contributed to the accident. The Insurance Company has failed to prove that driver's breath smelled alcohol within the range, making him liable for the offence under Section 185 of MV Act. Thus, the plea of contributory negligence on part of the driver on this aspect, taken by the Insurance Company fails.
MAC Petition No. 327/11 Rita Devi V/s. Hayat Khan & Ors. Page : 11/14
25.Since the Insurance Company has admitted the policy as on the date of accident, therefore, it is respondent no. 3/Insurance Company which is liable to pay the compensation amount. Since, no violation u/s 149 (2) (a) of M.V. Act could be established by respondent no. 3, in such circumstances, I am of the considered view that it is the Insurance Company, which shall be responsible for the payment of compensation.
AWARD :
26.The petition stands allowed. The respondent No.3/Insurance company, is liable to pay the compensation of Rs. 16,22,200/ within one month. Following the judgment of Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, the respondent No. 3 shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioner.
27.The amount of Rs. 7,22,200/ shall be given to the petitioner no. 1 forthwith. Out of which Rs. 2,22,200/ shall be released in the name of petitioner no.1 and remaining amount of Rs. 5,00,000/shall be kept in her name, in the form of FDR for a period of Seven years with release of periodical interest to her.
28.The amount of Rs. 3,00,000/ shall be given to the petitioner no. 4 MAC Petition No. 327/11 Rita Devi V/s. Hayat Khan & Ors. Page : 12/14 forthwith. Out of which Rs. 1,00,000/ shall be released in the name of petitioner no. 4 and remaining amount of Rs. 2,00,000/shall be kept in her name, in the form of FDR for a period of Two years with release of periodical interest.
29.The remaining amount shall be kept in the form of Two FDRs of equal amount in favour of petitioner no. 2 & 3, till they attain the age of majority with the release of periodical interest.
30.Respondent no. 3 is hereby directed to deposit the award amount with Uco Bank, Karkardooma Courts Complex in the name of the Petitioners, as directed above, within 30 days from the date of award. The Bank would wait for the further directions as to the disbursement of the same till the compliance is reported.
31.The interest on the aforesaid Fixed Deposits shall be paid monthly by Automatic Credit of Interest in the Savings Account of petitioners.
32.Withdrawal from the said Account shall be permitted to petitioners after due verification and Bank shall issue Photo Identity Card to petitioners to facilitate Identity.
33.The original Fixed Deposit Receipts shall be retained by the Bank in safe custody. However, original Passbook shall be given to the petitioners / beneficiaries with photocopy of FDRs. On expiry of period of each FDR, MAC Petition No. 327/11 Rita Devi V/s. Hayat Khan & Ors. Page : 13/14 the Bank shall automatically credit the maturity amount in Savings Account of beneficiaries.
34.No loan, advance, withdrawal shall be allowed on the said FDRs without permission of this court.
35.Half yearly statement of account be filed by the Bank in this court.
36.In case, even after passage of 90 days from today, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/.
File be consigned to Record Room.
Announced in the open court
Dated : 10.12.2014 (MS. RAVINDER BEDI)
POMACT (EAST)
KKD COURTS, DELHI.
MAC Petition No. 327/11 Rita Devi V/s. Hayat Khan & Ors. Page : 14/14
MACT NO. 327/11
10.12.2014
Present : Petitioner in person.
Vide separate order, dictated and announced in the open Court an Award is passed in favour of petitioners and against the respondent no. 3/Insurance company, is liable to pay the compensation of Rs. 16,22,200/ within one month. Following the judgment of Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, the respondent No. 3 shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioner.
The amount of Rs. 7,22,200/ shall be given to the petitioner no. 1 forthwith. Out of which Rs. 2,22,200/ shall be released in the name of petitioner no.1 and remaining amount of Rs. 5,00,000/shall be kept in her name, in the form of FDR for a period of Seven years with release of periodical interest to her.
The amount of Rs. 3,00,000/ shall be given to the petitioner no. 4 forthwith. Out of which Rs. 1,00,000/ shall be released in the name of petitioner no. 4 and remaining amount of Rs. 2,00,000/shall be kept in her name, in the form of FDR for a period of Two years with release of periodical interest.
The remaining amount shall be kept in the form of Two FDRs of equal amount in favour of petitioner no. 2 & 3, till they attain the age of majority with the release of periodical interest.
Respondent no. 3 is hereby directed to deposit the award amount with Uco Bank, Karkardooma Courts Complex in the name of the Petitioners, as directed above, within 30 days from the date of award. The Bank would wait for the further directions as to the disbursement of the same till the compliance is reported.
MAC Petition No. 327/11 Rita Devi V/s. Hayat Khan & Ors. Page : 15/14 The interest on the aforesaid Fixed Deposits shall be paid monthly by Automatic Credit of Interest in the Savings Account of petitioners.
Withdrawal from the said Account shall be permitted to petitioners after due verification and Bank shall issue Photo Identity Card to petitioners to facilitate Identity.
The original Fixed Deposit Receipts shall be retained by the Bank in safe custody. However, original Passbook shall be given to the petitioners / beneficiaries with photocopy of FDRs. On expiry of period of each FDR, the Bank shall automatically credit the maturity amount in Savings Account of beneficiaries.
No loan, advance, withdrawal shall be allowed on the said FDRs without permission of this court.
Half yearly statement of account be filed by the Bank in this court.
In case, even after passage of 90 days from today, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/.
List for reporting compliance on 20.01.2015.
(MS. RAVINDER BEDI) PO MACT(EAST)KKD./DELHI/10.12.2014 MAC Petition No. 327/11 Rita Devi V/s. Hayat Khan & Ors. Page : 16/14