Delhi District Court
Unique Case Id No.02403C0108252 vs Om Prakash Son Of Har Lal (Driver/Owner) on 1 November, 2012
IN THE COURT OF MS. NIRJA BHATIA :
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL :
SOUTH-EAST DISTRICT : SAKET COURTS : NEW DELHI
Suit No.206/2010
Unique Case ID No.02403C0108252010
Fatal Case
1 Smt.Chandni Wife of late Shri Yogesh Kumar,
2 Master Tarun Son of late Shri Yogesh Kumar,
3 Shri Chander Sain Son of Shri Khedu (Father)
4 Smt.Kaushalya Wife of Shri Chander Sain (Mother)
Petitioner No.2, being minor, represented through
his mother and natural guardian, Smt.Chandni.
All residents of :
Village Laxmipur, Block Khorabar, District Gorakhpur, UP.
......Petitioners
Versus
1 Om Prakash Son of Har Lal (driver/owner)
Resident of :
i) A-56, Jhuggi Gola Kuan, Tehkhand, New Delhi.
ii) A-46, Gola Kuan, Block-A, Okhla Indl.Area, New Delhi-20.
2 ICICI Lombard General Insurance Company Ltd.,
ICICI Bank Tower, Banora Rutla Complex, Mumbai-400051
Also at :
3rd Floor, 315, Aggarwal City Mall, Near M-2K,
Rani Bagh, Pitam Pura, New Delhi.
.....Respondents
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Suit No.206/2010 (Chandni etc. Vs. Om Prakash etc.) Page 1 of 13
Date of institution : 22.03.2010
Date of reserving the judgment : 01.11.2012
Date of pronouncement : 01.11.2012
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AWARD
This judgment/award shall decide the question of awarding the compensation filed by way of present petition under Section 166 read with Section 140 of MV Act, 1988 as amended up to date (hereinafter referred as Act), arising out of a fatal case.
2 The brief facts necessary for decision are that deceased Yogesh Kumar met with fatal end on 1.5.2008 at about 0045 hrs on account of the injuries suffered by him in road traffic accident caused by the offending vehicle (motorcycle) bearing registration No.DL 3S BE-4326 near ESI Hospital at Maa Anand Mai Marg, DF Block, New Delhi. It is stated that at the time of accident, the deceased was going in a TSR, bearing registration No.DL 1R K-2618 from Badarpur to Govind Puri and when it reached at the above- mentioned place at about 0045 hrs in the midnight, it was hit by the speeding motorcycle (the offending vehicle) numbered above. Since, the offending vehicle was being plied rashly and negligently and at very high speed, it hit the TSR with great force resulting in the deceased's suffering from grievous injuries on his right leg. He was removed to AIIMS Trauma Centre, however, he could not survive and died subsequently on 11.5.2008. 3 It is claimed that the deceased was employed at an export company and was commanding income of Rs.7,000/- per month. It is averred that the deceased left behind him his wife, the petitioner Smt.Chandni, one minor son aged about two years and the old aged parents. It is averred that Suit No.206/2010 (Chandni etc. Vs. Om Prakash etc.) Page 2 of 13 due to the untimely death of Yogesh Kumar, the family has suffered innumerable loss on account of dependency and have also undergone trauma and for deprivation of consortium, loss of love and affection etc., have made expenses on funeral and on other heads. Total claim of Rs.40 lac has been made.
4 Consequent to the filing of the present petition, summons were issued to the respondents. The respondents were served and filed their replies in which the liability was denied.
5 The issues were framed by my learned Predecessor vide order dated 1.7.2010 to the following extent :
1 Whether the petitioner suffered injuries in an accident that took place on 1.5.2010 at about 0045 AM involving motorcycle No.DL 3S BE-4326 driven and owned by respondent No.1 and insured with respondent No.2?
2 Whether the petitioner is entitled for compensation? If so, to what amount and against which of the respondents?
3 Relief.
6 Consequent to the framing of issues, the parties were asked to lead their evidence. The petitioner, Smt.Chandni, widow of deceased, tendered her examination affidavit and was cross-examined by the learned counsels for the respondents. The petitioners also examined PW2 Shri Prem Vallabh Sharma, Personnel Manager of the employer of deceased whereafter the PE was closed. Despite availing opportunities, the respondents led no evidence and the same was closed. Opportunity was given to the parties to make their submissions. I have perused the written submissions filed by the Suit No.206/2010 (Chandni etc. Vs. Om Prakash etc.) Page 3 of 13 counsels for the parties and have carefully perused the record. I now proceed to record my findings on the issues, as below :
ISSUE NO.1 : NEGLIGENCE
7 Since, the present petition is instituted under Section 166 MV Act, it was incumbent upon the petitioners to establish the factum of negligence attributable to the erring driver, Om Prakash, in plying the offending motorcycle, bearing registration No.DL 3S BE-4326, rashly and negligently. The FIR in the present matter was registered on the statement made by victim Yogesh Kumar (since deceased), stating that while after finishing his duty, he was plying in a TSR bearing registration No.DL 1R K-2618 for going to his house and the TSR reached near ESI Hospital, Okhla, New Delhi, there was traffic jam because of one container trolley and the traffic was diverted on one road for moving in both the directions. When the TSR reached near the police picket, the erring driver while plying his motorcycle at a fast speed, rashly and negligently, hit the TSR from right side where the complainant was sitting, resulting in his suffering the injuries in the right foot whereafter the erring driver along with his motorcycle also fell on the road. The complainant was removed by the PCR to the hospital where the erring driver was also admitted.
8 Since, the complainant who was the victim in the present matter, succumbed to the fatal injuries during treatment, the facts leading to the accident have been reiterated by the widow of the deceased while tendering her examination affidavit before the court, who though is not an eye-witness, has relied upon the charge-sheet, filed by the IO as well as the investigation carried out by him.
9 The cause of death of the deceased is established through the post-mortem report which reflects his death due to septicemia consequent Suit No.206/2010 (Chandni etc. Vs. Om Prakash etc.) Page 4 of 13 upon the injuries caused by blunt force. Further, the IO during the course of investigation, prepared the site plan and seized both the vehicles involved in the accident and got conducted their mechanical inspections, inditing the involvement of the offending motorcycle in causing the accident whereafter the documents pertaining to the offending vehicle and the DL of the erring driver were seized.
10 The driver/owner though have filed reply denying the allegations made against the erring driver stating that he was falsely involved in the present case as the accident never occurred with his vehicle. It be observed that despite the opportunities being granted to him, the erring driver has not led any evidence in support of his defence. Further, not a single question is put to the petitioner denying his rashness in plying the motorcycle and causing the accident against the complainant. Moreover, he has not reported the matter of his alleged false implication before the higher police officials or before any court of law, though the remedy was available to him. Though, the widow of deceased was cross-examined, but nothing adverse came out to dis-credit her statement on the version given by her regarding the manner of driving the offending vehicle. Hence, nothing material came in the testimony of the petitioner favouring the respondent No.1.
11 Thus, sufficient material is placed on record to indite towards the rashness and negligence of the erring driver, Om Prakash, in plying the offending motorcycle and in causing the accident against the deceased. 12 Even otherwise, it is pertinent to observe that the degree of proof required for proving the negligence on the part of the driver in the present proceedings, is not as vigorous as is required in proving the guilt of the accused in criminal trial. The intent of the present legislation is benevolent and the entire purpose of the legislation is likely to be defeated if in each case Suit No.206/2010 (Chandni etc. Vs. Om Prakash etc.) Page 5 of 13 the petitioner is asked to prove beyond reasonable doubt the involvement and negligence on the part of the driver. In reaching to the above opinion, I am guided by the judgment of Kaushnuma Begum and others Versus New India Assurance Limited, 2001 ACJ 421 SC as well as the case reported as National Insurance Company Limited Versus Pushpa Rana, 2009 ACJ 289, wherein it is held that mere involvement of a vehicle is sufficient to establish and hold the claim petition to be maintainable. It is held that even the certified copy of charge-sheet may not be asked for if the petitioner is able to satisfy on record the involvement of the offending vehicle through the copy of FIR and the mechanical inspection report. The issue hence, is decided in favour of the petitioner and against the respondents. ISSUE NO.2 : COMPENSATION :
LOSS OF DEPENDENCY
13 The deceased is claimed to have been employed with an export company and commanding an income of Rs.7,000/- per month. In pursuance of the above, the petitioners have called PW2 Shri Prem Vallabh Sharma, Personnel Manager, Tets-N-Rai International, E-46/5, Okhla Industrial Area, Phase-II, New Delhi, where the deceased is claimed to have been working. It is shown that at the time of his death, he was working as Mechanic. The concerned officer has brought the record as per which the appointment in favour of the deceased has been made consequent to his application dated 25.7.2007, on the same day and he has been put on probation uptil 24.1.2008. The salary on which the deceased has been employed, is fixed @ Rs.7,000/- per month. The said fact is established through the document, Ex.PW2/B, i.e., the copy of appointment letter. Besides, the witness has also tendered on record, Ex.PW2/A which is the register of payment of wages Suit No.206/2010 (Chandni etc. Vs. Om Prakash etc.) Page 6 of 13 showing disbursement of salary to the deceased @ Rs.7,000/- per month. In such circumstances, the factum of employment and income is established. 14 In view of the judgment of Hon'ble Supreme Court in case titled, Santosh Devi Versus National Insurance Company Ltd. and others in Civil Appeal No.3723 of 2012 passed on 23.4.2012, inflation @ 30% are also awarded to the petitioners as it is apparent from the statement of the witness that they were providing periodic increase in the salary of the deceased with the increase in the rate of inflation. The relevant portion of the judgment reads as under :
"In our view, it will be naive to say that the wages or total emoluments/income of a person who is self- employed or who is employed on a fixed salary without provision for annual increment etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families."
It has also been observed by the Hon'ble Supreme Court that :
"Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of Suit No.206/2010 (Chandni etc. Vs. Om Prakash etc.) Page 7 of 13 living, the persons falling in the latter category periodically increase the cost of their labour .............. it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 percent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."
Being guided by the judgment above, amount of 30% is added in the income of the deceased and is calculated as under :
7,000 X 30% = 2,100/-
7,000 + 2,100 = 9,100/-
Deductions It be observed that at the time of his demise, the deceased was survived by his widow, one minor son besides old aged parents. Accordingly, in view of the judgment passed in case tilted, Sarla Verma Versus DTC, passed on 15.4.2009 in SLP No.3483/2008 deductions on account of personal expenses @ 1/3rd is to be calculated from the dependency. To get the actual dependency of the LRs of the deceased, the following formula is adopted :
9,100 divided by 3 = 3033.33 9,100 - 3,033.33 = 6,066.67 rounded off to Rs.6,067/-
For calculating the yearly dependency of the LRs of the deceased, the amount is to be multiplied with 12 and therefore, the yearly dependency comes to Rs.6,067 X 12 = Rs.72,804/-.Suit No.206/2010 (Chandni etc. Vs. Om Prakash etc.) Page 8 of 13
Thus, the actual yearly dependency of the petitioners is assessed as Rs.72,804/- which the deceased would have contributed to the family, had he remained alive.
Multiplier The deceased Yogesh Kumar as per appointment letter, Ex.PW2/B, is shown to have been born on 5.11.1983. Thus, he was less than 25 years of age on the date of his death on 11.5.2008 due to the accident on 1.5.2008. Therefore, in view of the law laid down in Sarla Verma Versus DTC, (supra), the multiplier of '18' for the persons falling in the age group of '21-25' is taken to assess the loss of dependency of the deceased. Hence, total loss of dependency of the LRs of the deceased is assessed as 72,804 X 18 = 13,10,472/- The award on account of dependency for the above amount is passed.
FUNERAL EXPENSES
15 The petitioners on record, have not filed any document on account of expenses of funeral of deceased, Yogesh Kumar. However, it is presumed that an amount of Rs.25,000/- at least may have been spent on the last rites of the deceased. The amount of Rs.25,000/- is hence, awarded on account of funeral expenses.
LOVE & AFFECTION 16 The deceased left behind him his one minor son besides old aged parents. In view of the judgment of Sarla Verms Versus DTC (supra), award for an amount of Rs.10,000/- in favour of the above petitioners is passed towards love and affection.
Suit No.206/2010 (Chandni etc. Vs. Om Prakash etc.) Page 9 of 13LOSS OF CONSORTIUM 17 In the present case, the petitioner Smt.Chandni has suffered loss of life of her husband as well as loss of enjoyment of her life on account of being deprived of the company of her husband and enjoyment of matrimonial bliss. She may not be able to live a normal life after having lost her life partner. I hereby award an amount of Rs.25,000/- in favour of the petitioner on account of Loss of Consortium.
LOSS OF ESTATE 18 In view of the circumstances detailed above, the petitioners are also entitled for loss of estate in respect of death of Yogesh Kumar. Accordingly, an amount of Rs.10,000/- is passed in favour of the petitioners towards loss of estate.
The total compensation is assessed as under :-
Loss of Dependency Rs.13,10,472/-
Funeral Expenses Rs. 25,000/-
Love & Affection Rs. 10,000/-
Loss of Consortium Rs. 25,000/-
Loss of Estate Rs. 10,000/-
Total Rs.13,80,472/-
Less Interim Award Rs. 50,000/-
Balance Payable Sum Rs.13,30,472/-
Hence, the petitioners are awarded a total amount of Rs. 13,30,472/-.
RELIEF 19 I hereby award an amount of Rs.13,30,472/- as compensation with interest @ 9% per annum, from the date of filing the present petition, i.e., 22.3.2010 till the date of realisation of the amount, in favour of the petitioners and against the respondents.
Suit No.206/2010 (Chandni etc. Vs. Om Prakash etc.) Page 10 of 1320 The driver/owner, R-1 is the principal tort feasor whereas R-2 being the insurance company, is the joint tort feasor, and is jointly and vicariously liable for the acts of the driver, R-1.
21 In view of the above discussion, the insurance company is directed to discharge the liability of the award amount within a period of 60 days from today along with interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay. 22 In the judgment of Union of India and others Versus Nansari and others, MACA 682/2005, decided on 13.1.2010, which has been affirmed by the Hon'ble Supreme Court in order dated 17.12.2009 in SLP (Civil) No.11801-11804/2005, the Hon'ble High Court have given directions for the protection of the award amount. In view of the aforesaid judgment, it is directed that out of the above awarded amount of Rs. 13,30,472/- (Rupees thirteen lac thirty thousand four hundred and seventy two only), an amount of Rs.1,30,472/- (Rupees one lac thirty thousand four hundred and seventy two only) be released immediately on its realisation in favour of widow of deceased, Smt.Chandni, being petitioner No.1. 23 It is also directed that out of the remaining amount of Rs. 12,00,000/- (Rupees twelve lac only), amount of Rs.6,00,000/- each (Rupees six lac only), be imparted in favour of minor son of the deceased, namely, Master Tarun (son), being petitioner No.2, which amount be kept in the State Bank of India by way of FDR and be released to him on his attaining the majority.
24 It is also directed that out of the remaining amount of Rs. 6,00,000/- (Rupees six lac only), amount of Rs.50,000/- (Rupees fifty thousand only) each, total amounting to Rs.1,00,000/- (Rupees one lac only) Suit No.206/2010 (Chandni etc. Vs. Om Prakash etc.) Page 11 of 13 be imparted in favour of old aged parents of the deceased, namely, Shri Chander Sain and Smt.Kaushalya, being petitioner Nos.3 & 4, which amount be also released to them, on its realisation.
25 The remaining amount of Rs.5,00,000/- (Rupees five lac only), awarded in favour of petitioner No.1, Smt.Chandni, be kept in the State Bank of India Branch by way of FDR for a period of five years in her account. The petitioners may approach Shri H.S.Rawat, Nodal Officer (Mobile No. 09717044322), for opening of the accounts after receiving the copy of the award, whereafter the amount of the petitioner No.1, Smt.Chandni, shall be released to her as under :
26 20% of the FDR amount be released to her on the expiry of first year, along with proportionate interest.
27 20% of the FDR amount be released to her on the expiry of second year, along with proportionate interest.
28 20% of the FDR amount be released to her on the expiry of third year, along with proportionate interest.
29 20% of the FDR amount be released to her on the expiry of fourth year, along with proportionate interest.
30 The remaining amount of 20% of the FDR amount be released to the petitioner on the expiry of fifth year, along with proportionate interest. The original FDRs be kept with the bank which shall issue a photo identity cards to the petitioners to ascertain their identity. The copy of the award shall be given to the parties.
31 It is directed that the FDRs so deposited with the bank, be renewed automatically and the interest thereupon shall be paid monthly, which shall be credited automatically in the savings account of the petitioners. The original FDRs be detained by the bank in safe custody. However, the Suit No.206/2010 (Chandni etc. Vs. Om Prakash etc.) Page 12 of 13 original passbooks shall be issued and given to the petitioners along with the photocopy of the FDRs. The bank is directed to hand over the original FDRs on afflux of time and shall issue the photo identity cards to the petitioners to facilitate the withdrawal after due verification. It is further directed that no cheque books shall be issued to the petitioner without the permission of this court.
32 It is also directed that the insurance company shall make an endorsement of the title of the case, suit number, name of the parties and other relevant details while depositing the cheques in the bank. The compliance be made by all concerned.
33 Copy of the order shall be kept for receiving the compliance. File be consigned to the record room after completion of necessary formalities.
Announced in open Court ( NIRJA BHATIA )
Dated : 1.11.2012 PO : MACT-02, (SE)
Saket Courts, New Delhi
Suit No.206/2010 (Chandni etc. Vs. Om Prakash etc.) Page 13 of 13