Delhi District Court
Smt. Neelam vs Ramesh Kumar on 1 November, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.355/14
Date of Institution: 25.10.2013
IN THE MATTER OF:
1. Smt. Neelam
W/o Late Shri Vivek Kumar
2. Divyansh Sharan
S/o Late Shri Vivek Kumar
3. Yashasvi Sharan
S/o Late Shri Vivek Kumar
4. Smt. Krishna
W/o Shri Ved Ram
5. Shri Ved Ram
S/o Shri Dhara Singh
All r/o H. No. 25, Pocket16
Sector3, Dwarka
New Delhi 110078. ...Petitioners
Versus
1. Ramesh Kumar
S/o Shri Nand Kishore
R/o H.No.601, Chauhan Mohalla
Vill Rangpuri
New Delhi.
Suit no.355/14
Neelam & Ors. v Ramesh Kumar & Ors. Page no. 1 of 34
2. Shri Vijaypal
S/o Shri Sukhbir Singh
R/o H.No.1152, Vill Mahipalpur
Delhi.
3. United India Insurance Co. Ltd.
10203, Jamuna House
Padam Singh Road, Karol Bagh
New Delhi. ...Respondents
Final Arguments heard : 27.09.2014 Award reserved for : 01.11.2014 Date of Award : 01.11.2014 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioners that on 02.08.2013 at about 9.30 a.m. the deceased Shri Vivek Kumar was going to his office and when he was trying to get inside the RTV bus bearing No.DL1VA9781 all of a sudden the driver i.e. the respondent No.1 started the RTV very rashly without following the traffic rules and without carrying the passengers and due to the sudden movement of the RTV, the deceased fell down from the RTV on the road and received fatal injuries and thereafter the deceased was taken to R&R Hospital by the PCR van where the doctors declared him dead. It is averred that therefore, the post Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 2 of 34 mortem of the deceased was conducted in VMMC & Safdarjung Hospital, New Delhi vide P.M. No.1181/13 dated 02.08.2013. It is averred that the accident was caused due to the rash and negligent driving of the respondent No.1 who was driving the RTV without obeying the traffic rules and regulations which caused the untimely death of the deceased. It is stated that in respect of the accident FIR No.249/2013 under Sections 279/304A IPC was registered at PS Delhi Cantt. It is averred that an amount of Rs.1,00,000/ (approximately) was spent on the last rites of the deceased.
3. It is averred that the deceased was an Engineer in BHEL, Delhi and was earning Rs.8,00,000/ per annum (approximately) as salary and was also getting pension from the Department of Indian Air Force but due to the untimely death of the deceased his family members had been deprived of love and affection of the deceased and also had to suffer great financial loss and injury as the deceased was the only sole bread earner of his family. It was averred that at the time of the accident the deceased was just 46 years old and was possessing sound mind, health and robust physique and was not suffering from any kind of ailment or addiction and because of the sudden untimely death of the deceased, his family was deprived of the love and affection of their husband, father and son and there was every possibility, being a hard working person the deceased could reach to a stage where he could fulfill all the requirements of his family and could earn much. It is averred that the marital life of the wife of the deceased i.e. the petitioner No.1 had Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 3 of 34 totally been ruined. It is prayed that compensation be awarded in favour of the petitioners and against the respondents.
4. Reply was filed on behalf of the respondents No.1 and 2 taking the preliminary objections that the DAR was wrong and the police officials had concealed the material facts. It was denied that the alleged accident had ever occurred or was caused due to any fault of the respondents No.1 and 2 and the vehicle of the respondents No.1 and 2 had been falsely implicated in the FIR/DAR. It is averred that the fact that the alleged incident/accident was not caused by the vehicle of the respondents No.1 and 2 was evident from the documents filed with the DAR. It is averred that the vehicle of the respondents No.1 and 2 had been falsely implicated by the police officials as the vehicle No.DL1VA9781 was not involved in the alleged accident at all as had been claimed by the police officials. It is averred that since no such accident was ever caused due to the rash and negligent driving of the driver of RTV vehicle No.DL1VA9781, therefore no vehicle number had been mentioned in the FIR. It is averred that the alleged incident/accident was not caused by the respondent No.1 who was driving the vehicle of the respondent No.2. It is averred that the compensation claimed by the petitioners is highly inflated and the same is not based on any principle or criteria of law. It is averred that the vehicle bearing No.DL1VA9781 RTV of the respondent No.2 was driven by the respondent No. 1 by following all the traffic rules and regulations caring for the safety of others under the supervision of the respondent No.2 and the respondent No.1 is the Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 4 of 34 holder of a valid Indian DL bearing No.DL1220000025016 issued by the Licensing Authority, Delhi and the same was valid upto 28.11.2015. It is averred that the vehicle of the respondents No.1 and 2 is insured with United India Insurance Company Ltd. vide policy No.0407003113P101396469 which was valid upto 05.06.2014. It is averred that the respondents No.1 and 2 were not jointly and severally liable to make any payment of compensation amount to the petitioners, as the alleged offending vehicle was fully insured with the respondent No.3 hence, the respondent No.3 was only liable to make the payment of compensation, if any, granted by the Court.
5. Initially Detailed Accident Report was filed by the IO on 20.9.2013 and thereafter the claim petition was filed on 25.10.2013. It was stated by the learned counsel for the respondent No.3 that an offer of Rs.30 lacs was made to the petitioners but the same was not acceptable to them. From the pleadings of the parties, the following issues were framed vide order dated 28.04.2014:
1. Whether the deceased sustained fatal injuries in the accident which occurred on 02.08.2013 at about 9.30 hrs. at Airport to Dhaula Kuan Road in front of Raksha Sampada Bhawan, New Delhi caused by rash and negligent driving of vehicle No.DL1VA9781 driven by respondent no.1 and owned by respondent no.2 and insured with respondent no. 3? OPP
2. Whether the LRs of the deceased are Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 5 of 34 entitled for compensation? If so, to what amount and from whom?
3. Relief.
6. On behalf of the petitioners the petitioner No.1 Smt. Neelam entered into the witness box as PW1 and led her evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. She stated that her husband met with a road accident on 02.08.2013 and received fatal injuries. She stated that her husband was an Engineer in BHEL, Delhi and was earning Rs.8,00,000/ per annum and was also getting pension from the Department of Indian Air Force but due to the untimely death of the deceased she along with the other petitioners had been deprived of the love and affection of the deceased and also had to suffer great financial loss and injury as her husband was the only sole bread earner of their family. She stated that she along with the other petitioners had suffered mental agony, pains and other suffering apart from financial support and would have to suffer during their life time as the deceased was supporting the whole family financially.
Copy of ID proof of the petitioners is Ex.PW1/1 (colly), copy of salary certificate and the ID card of the deceased are Ex.PW1/2 (colly).
7. Sgt. Shiv Poojan Tiwari, Directorate of Air Veterans was produced in the witness box as PW2 and he had brought the record pertaining to the pension of Late Vivek Kumar who was employed with Air Force and who had retired in the capacity of Sgt. He stated that the deceased had retired from Air Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 6 of 34 Force on 31.01.2011. He stated that the deceased was getting Rs.10,360/ p.m. as pension. The document to that effect is Ex.PW2/A. The complete service record is collectively Ex.PW2/B. He stated that the widow of the deceased had applied for pensionary benefits which was under consideration. He was not crossexamined on behalf of the respondents No.1 and 2.
8. Ms. Shweta Ahuja, Sr. Accounts Officer, BHEL was produced in the witness box as PW3 and she had brought the record pertaining to Late Shri Vivek Kumar who was employed with BHEL in the capacity of Assistant Engineer, GrII. She stated that Vivek Kumar had joined BHEL on 25.02.2011. At the time of his joining the gross earnings of the deceased were Rs.30,786/ whereas the net pay was Rs.28,336/ p.m. The details for the month of March 2011 are Ex.PW3/1. She stated that in the month of July, 2013 the deceased was getting Rs.34,258/ p.m. and the details of the salary are Ex.PW3/2. In August 2013 he had worked only for 2 days and he was paid Rs.1105.11/ and the document is Ex.PW3/3. She stated that as per the policy of BHEL, they provide PP, Plant Performance to their employees and the deceased was paid Rs.51,641/ lump sum in June, 2013 and the documents related to the same are collectively Ex.PW3/4. She stated that the deceased was also paid special incentive payment for a sum of Rs.61,843/ in October, 2013 and the documents are collectively exhibited as Ex.PW3/5. The deceased was paid SIP (Special Incentive Payment) in two installments, one in October and another one on 06.01.2014. She stated that PP and SIP varies year to year Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 7 of 34 considering the performance of the company. She stated that BHEL has a policy regarding promotion and every 4 years employees get time bound promotion and the deceased was SI Grade and he would have got promotion in the year 2016, 2020 and 2024. He would have become eligible for promotion consideration in the said years. She stated that normally, the employees of BHEL get 3% increment every year and on promotion 6%. She was not crossexamined on behalf of the respondents No.1 and 2.
9. Shri Amit Kumar Saluja appeared in the witness box as PW4 and deposed that he is the eye witness of the accident. He stated that on 02.08.2013, he was going from his residence to his office which is situated at Sector32, Gurgaon. When he reached in front of Raksha Sampada Bhawan at about 9.35 a.m. to 9.45 a.m., there is a bus stop where buses stop normally. On that day he was driving his car and there was an RTV bearing registration number DL1VA9781 going ahead of him. Thereafter, the RTV stopped at the bus stop which was overloaded and tilted on one side. Some persons had alighted from the RTV and some were in the process of alighting. He stated that the deceased was in the process of alighting from the RTV, in the meanwhile, the driver of the RTV started and the rod which aligned with the window of the RTV hit the deceased on the back of the head as a result of which the deceased fell down on the road and on the pavement itself and never recovered. He stated that the accident had occurred on account of the negligence of the driver of the RTV. Thereafter, some bikers and he had tried Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 8 of 34 to help the deceased but he remained unconscious. Thereafter, somebody called on 100 number and within a span of 23 minutes, the PCR van came at the spot. They took the deceased to the hospital. Thereafter, he saw the driver of the RTV had stopped the RTV for a few seconds and then he fled away along with the offending RTV. PE was closed on 2.8.2014. RE was closed on 4.9.2014.
10. I have heard the Learned Counsel for the petitioners as well as the Learned Counsel for the respondent No.3 and perused the record. The petitioners were also examined on 27.9.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
11. My findings on the specific issues are as under:
Issue No. 1
12. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that the deceased sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
Suit no.355/14
Neelam & Ors. v Ramesh Kumar & Ors. Page no. 9 of 34 "The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). 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 offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle 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 part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 10 of 34 involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
13. The case of the petitioners is that on 02.08.2013 at about 9.30 a.m. the deceased Shri Vivek Kumar was going to his office and when he was trying to get inside the RTV bus bearing No.DL1VA9781 all of a sudden the driver i.e. the respondent No.1 started the RTV very rashly without following the traffic rules and without carrying the passengers and due to the sudden movement of the RTV, the deceased fell down from the RTV on the road and received fatal injuries and thereafter the deceased was taken to R&R Hospital by the PCR van where the doctors declared him dead. It was averred that therefore, the post mortem of the deceased was conducted in VMMC & Safdarjung Hospital, New Delhi vide P.M. No.1181/13 dated 02.08.2013. It was averred that the accident was caused due to the rash and negligent driving of the respondent No.1 who was driving the RTV without obeying the traffic rules and regulations which caused the untimely death of the deceased. It was stated that in respect of the accident FIR No.249/2013 under Sections 279/304A IPC was registered at PS Delhi Cantt. The petitioner No.1 in paras 2 and 5 of her affidavit Ex.PW1/A had reiterated the manner of the accident. She stated that her husband met with a road accident on 02.08.2013 and received fatal injuries. The petitioners in support of their case had also examined PW4 who was stated to be the eye witness to the accident and he had also stated about the Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 11 of 34 manner in which the accident took place.
14. The IO had filed Detailed Accident Report, on which reliance has been placed by the petitioners, containing the criminal record consisting of copy of charge sheet; copy of tehrir, copy of FIR; copy of site plan; copy of DDs, copy of arrest memo, copy of seizure memos; copy of mechanical inspection report of the offending vehicle, copy of notice under Section 133 MV Act, copy of TIP proceedings, copy of RC of the offending vehicle with its verification report, copy of the insurance policy of the offending vehicle and its verification report and copy of DL and verification report of the DL of the respondent No.1, copy of certificate of fitness of the offending vehicle, copy of verification report of the permit of the offending vehicle, copy of verification report of the badge of the respondent No.1, as also verified copy of the pay slip of the deceased, copy of MLC and the post mortem report, copy of handing over memo of the dead body, copy of order on the application for release of the offending vehicle on superdari along with a copy of the superdarinama and copies of statements under Section 161 Cr.P.C. As per the FIR No.249/13 under sections 279/304A IPC, PS Delhi Cantt the case was registered on the basis of complaint of ASI Anand Parkash (on DD). As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/304A IPC.
15. The respondents No.1 and 2 had filed the reply averring that the DAR was wrong and the police officials had concealed the material facts. It was Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 12 of 34 denied that the alleged accident had ever occurred or was caused due to any fault of the respondents No.1 and 2 and the vehicle of the respondents No.1 and 2 had been falsely implicated in the FIR/DAR. It was averred that the fact that the alleged incident/accident was not caused by the vehicle of the respondents No.1 and 2 was evident from the documents filed with the DAR. It was averred that the vehicle of the respondents No.1 and 2 had been falsely implicated by the police officials as the vehicle No.DL1VA9781 was not involved in the alleged accident at all as had been claimed by the police officials. It was averred that since no such accident was ever caused due to the rash and negligent driving of the driver of RTV vehicle No.DL1VA9781, therefore no vehicle number had been mentioned in the FIR. It was averred that the alleged incident/accident was not caused by the respondent No.1 who was driving the vehicle of the respondent No.2. It was averred that the vehicle bearing No.DL1VA9781 RTV of the respondent No.2 was driven by the respondent No.1 by following all the traffic rules and regulations caring for the safety of others under the supervision of the respondent No.2. During cross examination by the learned counsel for the respondents No.1 and 2 PW1 stated that she knew the details of the accident. She admitted that she had not witnessed the accident in question. She stated that she came to know about the accident through telephone call. She knew who had caused the accident. She stated that it was the driver of the offending vehicle who had caused the accident in question. She did not remember the exact number of the offending vehicle. However the number of the offending vehicle was mentioned in the Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 13 of 34 Detailed Accident Report filed by the concerned IO. She stated that her husband was going to his office at the time of the accident. The office of her husband was situated in Vasant Kunj area. She denied the suggestion that the vehicle in question had been falsely implicated in the case. Thus PW1 stated that she knew the details of the accident though she admitted that she had not witnessed the accident in question. She stated that she came to know about the accident through telephone call. She knew who had caused the accident and that it was the driver of the offending vehicle who had caused the accident in question. She did not remember the exact number of the offending vehicle. However the number of the offending vehicle was mentioned in the Detailed Accident Report filed by the concerned IO. Even otherwise she was not an eye witness to the accident. She reiterated that her husband was going to his office at the time of the accident which was situated in Vasant Kunj area.
16. The petitioners in support of their case had examined PW4 and during crossexamination by the learned counsel for the respondents No.1 and 2 PW4 denied the suggestion that the accident had not taken place on account of rash and negligent driving of the driver of RTV bearing registration No.DL1VA9781. He denied the suggestion that he was not present at the place of the accident or that he was not an eye witness or that he was a planted witness. During crossexamination by the learned counsel for the insurance company PW4 stated that the RTV was of yellow and Green/black colour. Normally, the traffic was very heavy near Rashtriya Sampada and as such the Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 14 of 34 question of overtaking did not arise. He stated that for approximately, 710 minutes, the RTV was ahead of his car. He stated that the RTV was proceeding towards NH8 side. The RTV was a normal RTV having 1415 seats. He stated that the RTV was overloaded. He stated that he had intimated the police about the accident on Monday i.e. 05.08.2013. When he had seen the RTV in an overloaded condition at almost the same place, he intimated the police from the same place at 100 number at about 9309.45 a.m. He stated that he was in a position to recall the number of the RTV as the extension number of his office is almost the same i.e. 897. He stated that the police had recorded his statement in front of Sector 19 Dwarka PS which was opposite to Welcom Hotel. Mr. Sanjay Phangal had recorded his statement. He denied the suggestion that the accident had taken place on account of the negligence of the deceased who was trying to alight from the running RTV. He further denied the suggestion that he had not seen the accident or that the accident in question had not taken place on account of the rash and negligent driving on the part of the RTV driver. Thus PW4 denied the suggestion that he was not present at the place of the accident or that he was not an eye witness or that he was a planted witness. He stated that normally, the traffic was very heavy near Rashtriya Sampada and as such the question of overtaking did not arise. It is pertinent that he stated that for approximately, 710 minutes, the RTV was ahead of his car and the RTV was proceeding towards NH8 side. He also stated that the RTV was overloaded. It is the case of the respondents No.1 and 2 that the number of the alleged offending vehicle was not mentioned in Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 15 of 34 the FIR and a perusal of the FIR also shows the same. PW4 was cross examined regarding the same and he stated that he had intimated the police about the accident on Monday i.e. 05.08.2013 when he had seen the RTV in an overloaded condition at almost the same place at about 9309.45 a.m. He stated that he was in a position to recall the number of the RTV as the extension number of his office is almost the same i.e. 897. Thus he even stated how he could recall the number of the RTV. Thus PW4 had stated about witnessing the accident and informing the police about the same on 5.8.2013. Even nothing has been brought out during crossexamination to show that he was deposing at the instance of the petitioners or was known to them in any manner and in fact he has been cited as an eye witness in the charge sheet as well.
17. The respondent No.1 who is the driver and the respondent No.2 who is the owner of the offending vehicle have not produced any evidence to dispute the version put forth by the petitioners. Further the criminal record has been placed on record which shows that the respondent No.1 has already been charge sheeted for the offence under Sections 279/304A IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondents have also not adduced any evidence to prove any other version of the accident. There is Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 16 of 34 absolutely no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.DLIVA9781. The fact that the charge sheet is filed against respondent No.1 and respondent No.1 is facing criminal trial is also not disputed. In view of the testimony of PWs and the documents on record which have remained unrebutted, the negligence of respondent No.1 has been prima facie proved.
18. It was stated that the deceased fell down from the RTV on the road and received fatal injuries and thereafter the deceased was taken to R&R Hospital by the PCR van where the doctors declared him dead. It was averred that therefore, the post mortem of the deceased was conducted in VMMC & Safdarjung Hospital, New Delhi vide P.M. No.1181/13 dated 02.08.2013. The post mortem report of the deceased is on record as per which the cause of death was due to shock as a result of ante mortem injury to head produced by blunt force impact. All injuries were ante mortem in nature. Thus it stands established that the deceased had sustained injuries in the alleged accident due to which he died. This issue is accordingly decided in favour of the petitioners and against the respondents.
Issue No.2
19. Since issue No.1 has been decided in favour of the petitioners they would be entitled to compensation as per the provisions of the Act. The Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 17 of 34 petitioners are the legal representatives of the deceased being the wife, minor children and parents of the deceased. PW1 was crossexamined on the point of dependency and during crossexamination by the learned counsel for the insurance company PW1 stated that her fatherinlaw as well as motherinlaw were alive and residing with her. She stated that her deceased husband was having 3 brothers. Out of 3 brothers, two were residing in Dwarka and one was residing in Ghaziabad. Her husband was the eldest. She denied the suggestion that her fatherinlaw as well as her motherinlaw were not residing with her. She stated that her fatherinlaw was a retired defence personnel and he was getting pension. She denied the suggestion that her parentsinlaw were not dependent on the income of her deceased husband. She stated that she is a housewife. Thus PW1 stated that her fatherinlaw as well as motherinlaw were alive and residing with her and they have also been joined as petitioners. She stated that her deceased husband was having 3 brothers. She also stated that her fatherin law was a retired defence personnel and he was getting pension. She stated that she is a housewife. During examination by the Tribunal the petitioner No.1 Smt. Neelam stated that she is aged about 40 years. She stated that she has 2 children, aged about 15 years and 9 years and both were studying in school. She stated that she is a housewife. Thus being the wife the petitioner No.1 would be regarded as dependent on the deceased as also the petitioners No.2 and 3 being minor children. During examination by the Tribunal the petitioner No.4 Smt. Krishna stated that she is aged about 65 Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 18 of 34 years. She stated that apart from the deceased she has 3 sons and all are working. It is true that the petitioner No.4 has three sons who are working but being the mother she would be regarded as dependent on the deceased. During examination by the Tribunal the petitioner No.5 Shri Ved Ram stated that he is aged about 73 years and he stated that he was drawing pension of around Rs.14,000/ per month. Even otherwise the father is not regarded as a dependent. As such the petitioner No.1 being the wife and the petitioners No.2 and 3 being the minor children and the petitioner No.4 being the mother would be regarded as dependent on the deceased.
20. The petitioners have claimed loss of dependency on the basis that the deceased was an Engineer in BHEL, Delhi and was earning Rs.8,00,000/ per annum (approximately) as salary and was also getting pension from the Department of Indian Air Force but due to the untimely death of the deceased his family members had been deprived of love and affection of the deceased and also had to suffer great financial loss and injury as the deceased was the only sole bread earner of his family. It was averred that at the time of the accident the deceased was just 46 years old and was possessing sound mind, health and robust physique and was not suffering from any kind of ailment or addiction and because of the sudden untimely death of the deceased, his family was deprived of the love and affection of their husband, father and son and there was every possibility, being a hard working person the deceased could reach to a stage where he could fulfil all the requirements of his family Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 19 of 34 and could earn much. It was averred that the marital life of the wife of the deceased i.e. the petitioner No.1 had totally been ruined. The petitioner No.1 in paras 3 and 4 of her affidavit Ex.PW1/A had deposed to that effect. She stated that she along with the other petitioners had suffered mental agony, pains and other suffering apart from financial support and would have to suffer during their life time as the deceased was supporting the whole family financially. Copy of salary certificate and the ID card of the deceased are Ex.PW1/2 (colly). During crossexamination by the learned counsel for the insurance company PW1 stated that she had filed the document pertaining to the employment and salary of her deceased husband. She stated that she was getting pension amount from BHEL and Indian Air Force. She was getting Rs. 2,000/ as pension from BHEL. For the first time she had received the said amount in the month of June, 2014. Thus PW1 stated that she had filed the document pertaining to the employment and salary of her deceased husband and also that she was getting pension amount from BHEL and Indian Air Force.
21. The petitioners in support of their case had examined PW2 who had brought the record pertaining to the pension of Late Vivek Kumar who was employed with Air Force and who had retired in the capacity of Sgt. He stated that the deceased had retired from Air Force on 31.01.2011. He stated that the deceased was getting Rs.10,360/ p.m. as pension. The document to that effect is Ex.PW2/A. The complete service record is collectively Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 20 of 34 Ex.PW2/B. He stated that the widow of the deceased had applied for pensionary benefits which was under consideration. He was not cross examined on behalf of the respondents No.1 and 2. During crossexamination by the learned counsel for the insurance company PW2 admitted that as per the document dated 13.09.2013 issued by Air Headquarters, Directorate of Air Veterans, the widow of the deceased would get family pension for a sum of Rs.9270/ p.m. + applicable DA and the same is Ex.R3W2/A. However, as per the order dated 18.11.2013 vide PPO No. 08/14/B/COR/23770/2013, the widow of the deceased was entitled for Rs.10,360/ as pension amount upto 02.08.2020. He admitted that had the deceased been alive he would have got pension till 16.09.2034 @ Rs.10,360/ p.m. But the widow of the deceased would only get pension @ Rs.10,360/ upto 02.08.2020 and thereafter, the reduced amount of Rs.5562 p.m. from 03.08.2020 till remarriage/ death. Thus PW2 admitted that the widow of the deceased would get family pension for a sum of Rs.9270/ p.m. + applicable DA and as per the order dated 18.11.2013 vide PPO No. 08/14/B/COR/23770/2013, the widow of the deceased was entitled for Rs.10,360/ as pension amount upto 02.08.2020. He admitted that had the deceased been alive he would have got pension till 16.09.2034 @ Rs. 10,360/ p.m. But the widow of the deceased would only get pension @ Rs. 10,360/ upto 02.08.2020 and thereafter, the reduced amount of Rs.5562 p.m. from 03.08.2020 till remarriage/ death. It was sought to be contended on behalf of the petitioners that after 2020 there would be reduction in the pension payable to the petitioner No.1 and the same should be taken into Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 21 of 34 consideration while computing the compensation payable to the petitioners. A perusal of Ex.PW2/A shows that the petitioner No.1 would be paid enhanced pension till 2020 and thereafter she would be paid normal rate of family pension i.e. Rs.6,216/. Even otherwise the same has no bearing for a decision in the present case.
22. The petitioners in support of their case had also examined PW3 who had brought the record pertaining to Late Shri Vivek Kumar who was employed with BHEL in the capacity of Assistant Engineer, GrII. She stated that Vivek Kumar had joined BHEL on 25.02.2011. At the time of his joining the gross earnings of the deceased were Rs.30,786/ whereas the net pay was Rs.28,336/ p.m. The details for the month of March 2011 are Ex.PW3/1. She stated that in the month of July, 2013 the deceased was getting Rs. 34,258/ p.m. and the details of the salary are Ex.PW3/2. In August 2013 he had worked only for 2 days and he was paid Rs.1105.11/ and the document is Ex.PW3/3. She stated that as per the policy of BHEL, they provide PP, Plant Performance to their employees and the deceased was paid Rs.51,641/ lump sum in June, 2013 and the documents related to the same are collectively Ex.PW3/4. She stated that the deceased was also paid special incentive payment for a sum of Rs.61,843/ in October, 2013 and the documents are collectively exhibited as Ex.PW3/5. The deceased was paid SIP (Special Incentive Payment) in two installments, one in October and another one on 06.01.2014. She stated that PP and SIP varies year to year considering the Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 22 of 34 performance of the company. She stated that BHEL has a policy regarding promotion and every 4 years employees get time bound promotion and the deceased was SI Grade and he would have got promotion in the year 2016, 2020 and 2024. He would have become eligible for promotion consideration in the said years. She stated that normally, the employees of BHEL get 3% increment every year and on promotion 6%. She was not crossexamined on behalf of the respondents No.1 and 2.
23. During crossexamination by the learned counsel for the insurance company PW3 stated that the widow of the deceased is getting Rs.2,000/ approximately as pension and Rs.513/ per child which is the permanent pension amount. In addition to it, BHEL has its own pension scheme which is still to be implemented for the year 201314 in which the deceased died. She stated that as per the record, the DOB of the deceased was 17.09.1967 and 60 is the age of retirement in their department. She had not brought any circular regarding the annual increment after promotion. Thus PW3 stated that the widow of the deceased was getting Rs.2,000/ approximately as pension and Rs.513/ per child which was the permanent pension amount and BHEL had its own pension scheme which was still to be implemented for the year 201314 in which the deceased died. The Hon'ble Supreme Court in Vimal Kanwar & Ors. v. Kishore Dan & Ors. II (2013) ACC 752 (SC) has held that PF, pension, insurance and similarly any cash, bank balance, shares, fixed deposits etc. are all a pecuniary advantage receivable by the heirs on account Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 23 of 34 of one's death but all these have no correlation with amount receivable under a statute occasioned only on account of accidental death and such amount will not come within the periphery of Motor Vehicles Act towards the pecuniary advantage liable for deduction. Thus it has been held that PF, pension, insurance and similarly any cash, bank balance, shares, fixed deposits etc. receivable by the heirs on account of one's death were all a pecuniary advantage and had no correlation with amount receivable under a statute occasioned only on account of accidental death and the same would be the position in the present case. To similar effect is the judgment of the Hon'ble Supreme Court in Manasvi Jain v. Delhi Transport Corporation 2014 (2) TAC 741 (SC) and of the Hon'ble Supreme Court in Shyamwati Sharma and others v. Karam Singh and others 2010 ACJ 1968 and of the Hon'ble High Court of Delhi in Netaji Subhash Institute of Technology v. Alka Ahuja and others 2011 ACJ 370. PW3 stated that 60 is the age of retirement in their department and she had not brought any circular regarding the annual increment after promotion and PW3 had also stated about the increments and when the deceased would be considered for promotion but as regards the same the future prospects would be considered.
24. A perusal of the documents produced by PW3 shows that the total earnings of the deceased for the month of July, 2013 were Rs.34,258.40. However the washing allowance of Rs.403.20, Transport Assistance of Rs. 2,284.80, Reimbursement Exp. NP & Mag of Rs.403.20, Reim. Internet for off Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 24 of 34 use of Rs.268.80, fitness allowance of Rs.403.20, uniform maintenance reimb of Rs.403.20, reimb. Fees - Upto Grad of Rs.1,344/ and Leave Travel Allow./ LTC of Rs.672/ cannot be included for calculating the income of the deceased for the computation of loss of dependency. The learned counsel for the petitioners had relied on the judgment on the Hon'ble High Court of Delhi in ICICI Lombard General Ins. Co. Ltd. v. Chander Kala and others 2012 ACJ 1203 to contend that the allowances were not to be deducted and the entire pay package of the deceased is to be computed but a perusal of para 7 of the said judgment shows that deduction of Rs.10,000/ made by the Claims Tribunal from the pay package towards conveyance charges was not faulted with. To similar effect is the judgment of the Hon'ble High Court of Delhi in Nisha Devi & Ors. v. Krishan Avtar & Ors. III (2012) ACC 234. Further the salary slip shows deduction of Rs.823/ towards income tax and as per settled law the actual income is taken after deducting the income tax and it was also so held in the above case. Thus the income of the deceased for the computation of loss of dependency would be Rs.27,253/. PW3 had also stated about PP and SIP and she stated that as per the policy of BHEL, they provide PP, Plant Performance to their employees and the deceased was paid Rs.51,641/ lump sum in June, 2013 and the deceased was also paid special incentive payment for a sum of Rs.61,843/ in October, 2013 and another installment was paid on 06.01.2014. However it is pertinent that PW3 stated that PP and SIP varies year to year considering the performance of the company and thus the same was dependent on the performance of the Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 25 of 34 company which would vary from year to year. As such taking a notional sum towards PP and SIP per month the actual income of the deceased is taken as Rs.32,000/ p.m. for computation of loss of dependency.
25. It is the case of the petitioners that the deceased was 46 years of age at the time of the accident and it was so stated in the claim petition. During crossexamination PW3 had stated that as per the record the DOB of the deceased was 17.09.1967 and the same is also reflected in Ex.PW3/2. During crossexamination by the learned counsel for the insurance company PW1 stated that her husband was 45 years old. She had placed on record the ID card of her deceased husband relating to his age. Thus the date of birth of the deceased was 17.9.1967. As such the deceased would have been more than 45 years old on the date of the accident i.e. 2.8.2013. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case the multiplier of 14 applies for calculating the loss of income where the age of the deceased is 41 to 45 years and the multiplier of 13 applies for calculating the loss of income where the age of the deceased is 46 t0 50 years. Thus the age of the deceased falls in the grey area not covered in both the categories but as the deceased was not yet 46 years old, the multiplier of 14 would be applicable in the present case.
26. As observed above the dependents on the deceased are his wife, two children and mother. As per the judgment of the Hon'ble Supreme Court in Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 26 of 34 Sarla Verma's case as the number of dependents was 4 there would be 1/4th deduction towards personal and living expenses of the deceased. As regards the future prospects in Rajesh and Ors. v Rajbir Singh and Ors. 2013 (6) SCALE 563 the Hon'ble Supreme Court held as under:
"11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age.
In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years."
12.In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
Suit no.355/14
Neelam & Ors. v Ramesh Kumar & Ors. Page no. 27 of 34 The learned counsel for the petitioners had argued that in case of government servants the addition could be taken as 50% and that the deceased would have got benefits under the 7th and 8th Pay Commissions and reliance was placed on the judgment of the Hon'ble Supreme Court in Puttamma and others v. K.L. Narayana Reddy and another 2014 ACJ
526. However in several other judgments the increase as per the age has been upheld. Thus the petitioners would be entitled to addition of 30% of the income towards future prospects as the deceased was more than 40 years of age.
Accordingly the loss of dependency as per the monthly income i.e. Rs. 32,000/ is calculated as under :
Rs.32,000/ + Rs.9,600/ (30% future prospects) = Rs.41,600/ X 12 (annual) X 14 (multiplier) - 17,47,200/ (1/4th towards personal expenses) = Rs.52,41,600/ rounded off to Rs.52,42,000/.
27. The petitioners are also entitled to compensation for loss of love and affection, loss of consortium, loss of estate and funeral expenses. It was stated that a sum of Rs.1,00,000/ (approximately) was spent upon the last rites of the deceased. However there is nothing to show the same. Suit no.355/14
Neelam & Ors. v Ramesh Kumar & Ors. Page no. 28 of 34
The total compensation is determined as under:
Loss of dependency : Rs.52,42,000/
Love and affection : Rs.1,00,000/
Loss of Consortium : Rs.50,000/
Loss of Estate : Rs.10,000/
Funeral expenses : Rs.25,000/
Total : Rs.54,27,000/
Thus, the total compensation would amount to Rs.54,27,000/.
RELIEF
28. The petitioners are awarded a sum of Rs.54,27,000/ (Rs.Fifty Four Lacs Twenty Seven Thousand only) along with interest @ 9% per annum from the date of filing of the claim petition till its realization including, interim award, if any already passed against the respondents and in favour of the petitioners. The petitioner No.5 Shri Ved Ram would be entitled to 10% share in the awarded amount; the petitioner No.4 Smt. Krishna would be entitled to 20% share in the awarded amount; the petitioners No.2 and 3 i.e. Divyansh Sharan and Yashasvi Sharan would be entitled to 10% share each in the awarded amount and the petitioner No.1 Smt. Neelam would be entitled to 50% share in the awarded amount.
Suit no.355/14
Neelam & Ors. v Ramesh Kumar & Ors. Page no. 29 of 34
29. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgment the award amount is to be disbursed as follows:
a) The entire share of the petitioners No.2 and 3 be kept in FDRs in UCO Bank, Patiala House Court, New Delhi till they attain the age of majority and for 3 years thereafter. 50% of the share of the petitioner No.5 be released to him by transferring it into his savings account in UCO Bank, Patiala House Court and 50% of the share of the petitioner No.5 be kept in FDR in UCO Bank, Patiala House Court, New Delhi for a period of 3 years. 20% of the share of the petitioners No.1 and 4 be released to them by transferring it into their savings account and the remaining amount out of their share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years. Suit no.355/14
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6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
b)The respondent No.3 is directed to deposit the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Smt. Neelam, Divyansh Sharan, Yashasvi Sharan, Smt. Krishna and Shri Ved Ram within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondent No.3 shall be liable to pay further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the savings account of the petitioners No.1 and 4.
f) The withdrawal from the aforesaid account shall be permitted to the petitioners No.1 and 4 after due verification and the bank shall issue photo Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 31 of 34 identity cards to the petitioners No.1 and 4 to facilitate their identity.
g) No cheque book shall be issued to the petitioners No.1 and 4 without the permission of the court.
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioners No. 1 and 4 along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
i) The original fixed deposit receipts shall be handed over to the petitioners No.1 and 4 on the expiry of the period of the fixed deposit receipts.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
k) On the request of the petitioners, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioners.
l) The petitioners shall furnish all the relevant documents for opening of the saving bank account and Fixed Deposit to Senior Manager of UCO Bank, Suit no.355/14 Neelam & Ors. v Ramesh Kumar & Ors. Page no. 32 of 34 Patiala House Court, New Delhi.
30. The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount.
APPORTIONMENT OF LIABILITY
31. The respondent No.1 is the driver and the respondent No.2 is the owner of the offending vehicle and the respondent No.3 is the insurer in respect of the offending vehicle. Thus the respondents No.1, 2 and 3 are held jointly and severally liable. No evidence has been led on behalf of the respondent No.3. Respondent No.3 i.e. United India Insurance Co. Ltd. being the insurance company has not disputed the insurance policy. There is no evidence on behalf of respondent No.3 to show that there was any violation of the rules and terms of policy by the respondents and in fact the duly verified documents regarding the offending vehicle were placed on record by the IO with the DAR. Suit no.355/14
Neelam & Ors. v Ramesh Kumar & Ors. Page no. 33 of 34 Hence, the respondent No.3 being the insurance company in respect of the offending vehicle is liable to pay the compensation on behalf of the respondents No.1 and 2. The respondent No.3 being the insurer is directed to deposit the award amount within 30 days with interest at the rate of 9% from the date of filing of the claim petition till its realization in UCO Bank, Patiala House Courts, New Delhi failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
32. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The respondent No.3 shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 31.1.2015.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House. File be consigned to Record Room.
Announced in open court
on this 1st day of November, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit no.355/14
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