Delhi District Court
Sonia Bhardwaj vs Santosh Gulia on 7 October, 2013
1
IN THE COURT OF SH AJAY KUMAR JAIN, PRESIDING OFFICER:
MOTOR ACCIDENT CLAIMS TRIBUNAL: NEW DELHI
Suit No. 16/11/10
FIR no. 385/07
PS Sriniwas Puri
U/s279/304A IPC
Sonia Bhardwaj Vs Santosh Gulia
Unique identification no. 02406C1067132008
FATAL CASE
1. Smt. Sonia Bhardwaj
S/o Late Sh. Shiv Kumar Bhardwaj
R/o Gali no. 19G, Molarband,
Badarpur, New Delhi
2. Sh. Munna Lal
S/o Sh. Bhajan Lal Sharma
3. Smt. Brij Bala
W/o Sh. Munna Lal
Both are R/o House no. C95/19G, Molarband Extension
Badarpur, New Delhi 110044
.............Petitioners/claimants
VERSUS
1. Smt. Santosh Gulia (owner)
R/o House no. O519, BlockO
Sewa Nagar, Lodhi Road, New Delhi110003
Suit No. 16/11/10, Sonia Bhardwaj Vs Santosh Gulia
2
2. Sh. Sumitra Mandal (driver)
S/o Sh. S. Mandal
R/o House no. 211, Hari Nagar Extension
Badarpur, New Delhi110044
3. Bajaj Allianz General Insurance Company Limited
2nd Floor, Pawan Mega Mall, Subhash Chowk,
Sonepat131001
......................Respondents
Date of Institution : 03.05.2008
Date of reserving judgment/order : 25.09.2013
Date of Pronouncement : 07.10.2013
JUDGMENT:
1. Present claim proceedings initiated on the basis of claim petition u/s 166/140 Motor Vehicle Act filed by the petitioner.
2. Petitioners/claimants in the present case are Smt. Sonia Bhardwaj wife of deceased Shiv Kumar, Sh. Munna Lal father of deceased and Smt. Brij Bala mother of deceased.
3. Brief facts of the case is that on 17.07.2007 at about 09.30am deceased Shiv Kumar Bhardwaj driving his motorcycle bearing no. DL3SAP4314, when reached at ring road, railway line flyover, Hari Nagar Ashram, New Delhi then all of a sudden offending bus bearing no. DL1PB0147 driven by respondent no. 2 (driver) in rash and negligent manner hit the Suit No. 16/11/10, Sonia Bhardwaj Vs Santosh Gulia 3 motorcycle of the deceased due to which deceased fell down and offending bus ran over him.
4. An FIR no. 385/07 u/s 279/304A IPC at PS Sriniwas Puri was registered on the statement of ASI Birsha Khalku. ASI Birsha Khalku stated that he had seen the incident, also alleged that offending bus was driven by respondent no. 2 in rash and negligent manner. Police during investigation prepared the site plan of the place of occurrence, seized the offending bus as well as motorcycle, issue notice u/s 133 M.V. Act to the owner of the offending bus, conducted mechanical inspection of the offending vehicle, conducted TIP of R2 however R2 refused to participate in the TIP proceedings, collected postmortem report of the deceased. On completion of investigation, police found respondent no. 2 accused of rash and negligent driving, hence chargesheeted the respondent driver for commission of offence u/s 279/304A IPC.
5. During proceedings vide amended memo of parties, petitioner no. 2 and 3 were also added to the memo of parties. Despite service through publication R2 driver not appeared, hence he was proceeded exparte vide order dated 08.08.2011. Written statements were filed by R1 and R3. The main plea of the R1(owner) is that the offending bus was duly insured. It is also admitted by the R1(owner) in WS that the offending bus was driven by R2 on the date of accident. Insurance company in its reply admitted insurance policy. However stated that R2 was not authorized to drive the Suit No. 16/11/10, Sonia Bhardwaj Vs Santosh Gulia 4 offending bus.
6. During inquiry following issues were framed:
1. Whether the deceased received fatal injuries in the accident which took place on 17.07.2007 at about 09.30am involving offending vehicle i.e bus bearing no. DL1PB0147 due to rash and negligent driving of respondent/driver, owned by respondent/owner insured by respondent no. 3 (insurance company)? OPP
2. To what amount of compensation the petitioner is entitled to claim and from whom ?
3. Relief.
7. During evidence petitioner no. 2 Munna Lal father of the deceased examined himself as PW1. No evidence is led by respondent no. 1. and 2 Insurance company examined R3W1 Sh. Veer Narayan Singh, Dealing Assistant, State Transport Authority, Delhi, R3W2 Shreyas Thakur, Executive Legal of the insurance company.
8. After hearing arguments and considering the material on record, my issue wise finding is as follows:
Issue No.1 (Negligence):
9. Petitioner no. 2 in his affidavit of evidence categorically stated that on Suit No. 16/11/10, Sonia Bhardwaj Vs Santosh Gulia 5 17.07.2007 at about 09.30am when the deceased was driving his motorcycle, he was hit by the offending bus driven by respondent no. 2 in rash and negligent due to which he died on the spot. In this regard PW1 relied upon the certified copies of the criminal case record filed by the police in the court of concerned MM. During investigation police registered the FIR on the statement of eye witness ASI Birsha Khalku who alleged that accident was caused due to the rash and negligent driving of R2. During investigation respondent no. 2 also refused to participate in the TIP proceedings. Police during investigation also prepared site plan of the place of occurrence, seized the offending vehicle, conducted its mechanical inspection, issued notice u/s 133 MV Act to the owner (R1) , collected the postmortem report. On completion of investigation, police found respondent no. 2 accused of rash and negligent driving, hence chargesheeted the respondent driver for commission of offence u/s 279/304A IPC.
10. During proceedings respondent no 1 and respondent no. 2 not led any evidence.
11. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court in case titled "Basant Kaur & Ors Vs. Chattar Pal Singh and Ors" [2003 ACJ 369 MP (DB)], wherein it has been held that registration of a criminal case against the driver of the offending vehicle is enough to record the finding that the Suit No. 16/11/10, Sonia Bhardwaj Vs Santosh Gulia 6 driver of offending vehicle is responsible for causing the accident. Further it has been held in catena of cases that the proceedings under the Motor Vehicles Act are not akin to the proceedings as in civil suit and hence strict rules of evidence are not required to be followed in this regard. I am also being guided by the judgment of Hon'ble High Court of Delhi in "National Company Limited Vs. Pushpa Rana" (2009 ACJ 287), wherein it was held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under Section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo or the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It is also settled law that the term rashness and negligence has to be constructed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
12. In view of the above discussion, further as no contrary evidence came against the petitioners, it stands proved that deceased had suffered fatal injuries due to rash and negligent driving of the R1. Accordingly the issue no. 1 is decided in favour of the petitioner and against the respondents.
Suit No. 16/11/10, Sonia Bhardwaj Vs Santosh Gulia 7 Issue no. 2 Compensation:
13. Loss of dependency: PW2 father of the deceased in his affidavit of evidence categorically stated that date of birth of deceased is 09.05.1981 and in this regard also filed the pan card of the deceased which is Mark PW1/C. He further deposed that deceased was doing being LLB from Agra University, exhibited admission card Ex. PW1/36, also deposed that deceased doing business and earning Rs. 10,000/ per month from the business. He was looking after the entire family being dependent upon him. In cross examination he denied the suggestion that he is not financially dependent upon the deceased. In his affidavit of evidence he also stated that deceased was proprietor of Add Plus Industries. However in cross examination stated that he did not have any documents to substantiate the same.
14. PW2 for proving the educational qualification relied upon marksheet of B.A. 3rd year mark PW1/A and also LLB admit card of first year (Ex. PW1/36). Perusal of the admit card Ex. PW1/36 shows that the petitioner was first year student of LLB in the year 2005, petitioner met an accident in the month July 2007, however no other record was filed to show that petitioner was doing LLB in the year 2007, and has passed any exam of the LLB. Mere filing of admit card of LLB of 2005 do not show that petitioner was doing LLB in 2007. Neither able to place any documents of proprietorship company nor able to state about the business of his proprietorship company. Hence , the petitioner income on the basis of Suit No. 16/11/10, Sonia Bhardwaj Vs Santosh Gulia 8 proprietorship business of Rs. 10,000/ could not be believed. However the petitioner is graduate, hence he is entitled for minimum wages rate applicable to the graduate on the date of accident. Under minimum wages rate applicable in Delhi, the minimum wages rate for graduate is Rs. 4230/ per month, hence income of the deceased is assessed is Rs. 4230/. He is entitled 30% as future prospects in view of Santosh Devi Case, hence, his annual income is assessed as Rs.{ 4230+(4230X30%)}x12= Rs. 65,988/
15. Personal Deduction: Deceased left behind three dependents i.e Smt. Sonia Bhardwaj wife of deceased, Sh. Munna Lal father of deceased and Smt. Brij Bala mother of deceased, hence 1/3rd of the income is deducted towards personal and living expenses in view of Sarla Verma case. Therefore, the actual dependency is Rs. 65988(65988 X 1/3)= Rs. 43,992/.
16. Multiplier: Petitioner no. 1 categorically stated that he was 27 years at the time of accident and further stated that he himself, his wife and wife of the deceased are fully dependent upon the deceased. Hence multiplier of 17 is applicable, therefore total loss of dependency is calculated as Rs. 43,992/ multiplied by 17= Rs. 7,47,864/ Therefore petitioners are granted award amount of Rs. 7,47,864/ on account of loss of dependency.
Suit No. 16/11/10, Sonia Bhardwaj Vs Santosh Gulia 9
17. Hon'ble apex court in case titled 'Rajesh & Ors. Vs. Rajbir Singh & ors. 2013(6) SCALE 563" directed Tribunals that irrespective of the claims made in the application, the Tribunals are required to award compensation which should be just equitable and reasonable. In this regard, the Hon'ble apex court revisited the amount of compensation under conventional heads of loss of consortium , loss of love and affection and funeral expenses. Apex court in para no. 20 & 21 held as under:
"20. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socioeconomic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi (Supra). We may, therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love , care and guidance to children and funeral expense. It may be noted that the sum of Rs. 2,500/ to Rs. 10,000/ in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case (Supra), it was held that compensation for loss of consortium should be in the range of Rs. 5000/ to Rs. 10,000/. In Legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That nonpecuniary head of damage has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., the Suit No. 16/11/10, Sonia Bhardwaj Vs Santosh Gulia 10 spouse is entitled to get, has to be compensated appropriately. The concept of nonpecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.
21. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head of 'funeral Expenses'. The 'Price Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and Suit No. 16/11/10, Sonia Bhardwaj Vs Santosh Gulia 11 equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/.
18. Funeral Expenses: Considering the facts and circumstances of the present case and the mandate of the above judgment, a sum of Rs. 25000/ is granted towards funeral expenses.
19. Loss of Consortium: Considering the facts and circumstances of the present case and the mandate of the above judgment, a sum of Rs. 1,00,000/ is granted to wife towards loss of consortium.
20. Loss of love and affection: Petitioner died leaving behind wife and old mother and father. Keeping in view the settled precedents and facts and circumstances a sum of Rs. 25000/ is granted to petitioners towards loss and affection.
21. Loss of Estate: The petitioners are also entitled for loss of estate in respect of death of Shiv Kumar. Accordingly, an amount of 10,000/ is passed in favour of the petitioners towards loss of estate.
22. The total compensation is assessed as under: S.No Details Amount Suit No. 16/11/10, Sonia Bhardwaj Vs Santosh Gulia 12 1 Loss of dependency Rs. 7,47,864// 2 Funeral Expenses Rs. 25,000/ 3 Loss of Love and Affection Rs. 25,000/ 4 Loss of consortium Rs. 1,00,000/ 5 Loss of Estate Rs. 10,000/ Total Rs.9,07,864/ Hence, the petitioners are awarded a total amount of Rs.9,07,864/
23. Petitioner Sonia Bhardwaj herself admitted before the court that she got remarried on 04.03.2008 after the death of the deceased. It is a settled law that widow is entitled for compensation over accidental death of the husband despite remarriage. In case titled United India Insurance Corporation Vs Asha Rani and Ors 2013, ACJ, 1679(J&K) held that wife can not coerced for leading the life of the widow after the death, and on the ground of remarriage her right to compensation from the accidental death of her previous husband remains unaffected.
RELIEF:
24. I hereby award an amount of Rs.9,07,864/(Rupee Nine lacs seven thousand eight hundred sixty four only) as compensation with interest @ 9% per annum, from the date of filing the present petition, i.e., till the date of realization of the amount, in favour of the petitioners and against the respondents on account of their liability being joint and several.
Suit No. 16/11/10, Sonia Bhardwaj Vs Santosh Gulia 13
25. The driver R2 is the principal tort feasor whereas R1 and R3 being the owner and the insurer are the joint tort feasor and are jointly and vicariously liable to to pay the award to the petitioners.
26. Liability:Insurance company examined R3W1 Sh. Veer Narayan Singh, Dealing Assistant, State Transport Authority who brought the documents showing the permit conditions of state carriage vehicle deposed that authorization card issued to Goverdhan Singh and Sardara Singh to drive the vehicle and R2 Sumitra Mandal is not authorized to drive the vehicle. R3W2 Shreyas Thakur also exhibited authorization letter and notice u/o 12 rule 8 as well as insurance policy and stated the R2 was not authorized to drive the vehicle and this in violation of one of the condition of the judgment of Hon'ble Supreme court in case title as M.C.Mehta Vs Union of India 1997 8 SCC 770 and section 7A of Delhi Motor Vehicle Rule.
27. The main ground of challenge by the insurance company is that R2 is not the authorized person to drive the vehicle. Hence, insurance company is not liable to pay the compensation. This contention is directly dealt by ith the Delhi High Court in case title Bajaj Allianz General Insurance company Ltd Vs Vibhishan Mahto @ Vibhishan Prasad and Ors MAC. APP. 756/2010 dated 04.12.2012. In this case Hon'ble Delhi High Court held that this is not violation of condition envisaged u/s 149(2) M.V. Act, thus, even if this violation is proved by the insurance company, it can not avoid its liability to indemnify the owner.
Suit No. 16/11/10, Sonia Bhardwaj Vs Santosh Gulia 14
28. Underlying principle is that as the insurance company is a creation of statute, therefore not entitled to raise any other defence for avoiding liability except statutory defences as envisaged under section 149 (2) of MV Act. Insurance company can not avoid liability on the ground of other statutory violations or violation of mandatory provisions committed by the insured (relied upon British India General Insurance Company Limited Vs Captain Itbar Singh AIR 1959 SC 331, National Insurance company limited Vs Nicolletta Rohtagi 2002 ACJ 1950 (SC), National Insurance company Vs T.Elumalai & Anr. AIR 1990 Madras 71, Regional Manager, United India Insurance Company Ltd Vs Narayanappa And Ors 2012 ACJ 1805).
29. Hence, the contention of the insurance company that offending vehicle was not driven by the authorized person can not be held to be a ground to avoid liability. Insurance company is liable to indemnify the owner and not entitled for any recovery rights.
30. In view of the above discussion, the insurance company is directed to discharge the liability of the award amount within a period of 30 days from today alongwith the interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay. Release of awarded amount:
31. Share of petitioner no.1 (wife of deceased): As petitioner no. 1 already Suit No. 16/11/10, Sonia Bhardwaj Vs Santosh Gulia 15 remarried therefore sum of Rs. 3,07,864/ alongwith proportionate interest thereon, is awarded to the petitioner no.1 being wife of the deceased. Out of this amount, Rs. 32,864/ alongwith proportionate interest be immediately released to the petitioner no.1 on realization. And for balance amount of Rs. 2.75 lacs alongwith proportionate interest thereon be kept in form of FDR in the following phased manner :
1.Rs. 75,000/for period of 1 year
2. Rs. 1,00,000/ for period of 2 years
3. Rs. 1,00,000/ for period of 3 years
32. In the share of petitioner no. 2 /(father of deceased): A sum of Rs. 3 lacs alongwith proportionate interest is awarded to the petitioner no.2 which is to be kept in form of FDR in the following phased manner :
1.Rs.1,00,000/for period of 1 year
2. Rs. 1,00,000/ for period of 2 years
3. Rs. 1,00,000/ for period of 3 years
33. In the share of petitioner no. 3/(mother of deceased): Balance sum of Rs. 3 lacs alongwith proportionate interest is awarded to the petitioner no. 3 which is to be kept in form of FDR in the following phased manner :
1.Rs.1,00,000/for period of 1 year
2. Rs. 1,00,000/ for period of 2 years
3. Rs. 1,00,000/ for period of 3 years Suit No. 16/11/10, Sonia Bhardwaj Vs Santosh Gulia 16
34. Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi
35. In terms of the directions given by Hon'ble High Court in case titled "Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
36. As per orders of Hon'ble High Court in case titled " New India Assurance Co. Ltd. Vs. Ganga Devi & ors. Bearing MAC. App.135/2008" as well as in another case titled as "Union of India Vs. Nanisiri" bearing MAC Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants.
37. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit/ savings account by Hon'ble High Court, insurance company is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioners. Within a period of 30 days from today, failing which respondent no.3 Insurance company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
Suit No. 16/11/10, Sonia Bhardwaj Vs Santosh Gulia 17
38. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "Fixed deposit/saving account" in the following manner:
(i) The interest on the fixed deposit be paid to the petitioner/ claimant by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to claimant/ petitioner after due verification and the Bank shall issue photo identity Card to claimant/ petitioner to facilitate identity.
(iii) No cheque book be issued to claimant/ petitioner without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original pass Book shall be given to the claimant/ petitioner alongwith photocopy of the FDR's.
(v) The original fixed deposit receipts shall be handed over to claimant/ petitioner at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii) Half yearly statement of account be filed by the Bank in this court.
(viii) On the request of claimant/ petitioner, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
Suit No. 16/11/10, Sonia Bhardwaj Vs Santosh Gulia 18
(ix) Claimant/ petitioner shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, state Bank of India, Saket Courts Complex Branch, new Delhi.
39. Directions for the respondent No. 3/Insurance company: The Respondents3 is directed to file the compliance report of their having deposited the awarded amount with the State Bank of India, Saket Court Branch in this tribunal within a period of 30 days from today.
40. The Respondent shall intimate to the claimant/ petitioner about it having deposited the cheques in favour of petitioner in terms of the award, at the address of the petitioner mentioned at the title of the award, so as to facilitate them to withdraw the same.
41. Copy of the order be given dasti to all the parties.
42. Put up the matter for compliance on 23.11.2013.
Announced in the Open court on 07.10.2013 (Ajay Kumar Jain) POMACT02 (South East District) Saket Courts, New Delhi /07.10.2013 Suit No. 16/11/10, Sonia Bhardwaj Vs Santosh Gulia