Delhi District Court
Sh. Sewa Ram vs Sh. Asraf on 20 December, 2011
IN THE COURT OF SH. ARVIND KUMAR: PRESIDING OFFICER
MOTOR ACCIDENT CLAIM TRIBUNAL: KARKARDOOMA COURTS:
DELHI
M.A.C. Petition No: 144/10
Unique Case I.D No: 02402C0275062009
1. Sh. Sewa Ram
S/o Sh. Bharama Nand
2. Smt. Susheela
W/o Sh. Sewa Ram ... Petitioners
VERSUS
1. Sh. Asraf
S/o Meeda
R/o Village Pali, P. S. Baghpat, district
Baghpat, UP.
2. M/s. Atal Transport Company Pvt. Ltd.
Address:- C-12, Sri Ram Market, Ist Floor,
100 Foota Road, Kabir Nagar, Delhi.
3. The Oriental Insurance Company Ltd.
" Oriental House", A-25/27, Asaf Ali Road,
New Delhi. ... Respondents
Presented on : 17.09.2009
Reserved for judgment on : 05.12.2011
Judgment delivered on : 20.12.2011
JUDGMENT
1. The petitioners have filed the present claim under section 166 &140 of the Motor Vehicle Act claiming compensation of Rs. 50,00,000/-( Rs. 50 Lac) for the death of Sh. Anil Kumar.
2. The brief facts, as stated by the petitioner, are that on 29 th August'2009 the deceased Sh. Anil Kumar, was going on motorcycle with his brother Sh. Amit Kumar and when they stopped their motorcycle for urinating, a truck bearing No. HR-38-M-9282 being driven rashly, negligently and at a high speed, came from behind, from the wrong side and hit the motorcycle and to the deceased Sh. Anil Kumar who was standing near to the motorcycle. The deceased Sh. Anil Kumar was MACT No: 144/10 Page No. 1/9 removed to Astha Nursing Home, Baraut and thereafter was shifted to Maharaja Agrasen Hospital, Punjabi Bagh, Delhi where he succumbed to the injuries on 30.08.2009. An FIR No. 338/09 under section 2789/304- A/427 IPC was registered.
3. The respondent No. 1 filed written statement denying almost all the facts mentioned in the petition. The respondent No. 1 denied the involvement of the vehicle in the accident.
4. The respondent No. 2 did not file written statement and was proceeded ex-parte on 03.06.2010.
5. The respondent No. 3 filed written statement admitting that vehicle bearing No. HR-38-M-9282(Truck) was insured with the respondent No. 3 vide policy No. 252108/31/2010/219 valid from 26.05.2009 to 25.05.2010. The respondent No. 3/insurance company further stated that the insurance company would not be liable if the driver of the offending vehicle was not holding valid driving licence or if the vehicle was being run in contravention of rules and regulations of Motor Vehicle Act, or if there was breach of terms and conditions of policy.
6. On the basis of the pleadings following issues were framed:-
1. Whether the petition is maintainable for want of jurisdiction ?
2. Whether deceased Sh. Anil Kumar suffered fatal injuries in the accident occurred on 29.08.2009 due to rash and negligent driving of vehicle (truck) No. HR-38-M-9282 being driven by respondent No. 1? (OPP)
3. Whether the petitioners are entitled for any compensation, if so, to what amount and from whom? ( OPP)
4. Relief.
7. The petitioner No. 1 Sh. Sewa Ram examined himself as PW-1, MACT No: 144/10 Page No. 2/9 Sh. Amit Kumar as PW-2, Sh. Aurobinda Panda as PW-3. On the other hand, respondents did not lead any evidence.
8. I have heard counsels for the parties and gone through the material on record. My findings on issues are as under : -
ISSUE No. 19. The petitioner filed the present petition mentioning the address of respondent No. 2/owner to be at C-12, Sri Ram Market, Ist Floor, 100 Foota Road, Kabir Nagar, Delhi. The law is well settled that if the respondent is resident of Delhi or is carrying on business for gain, within the jurisdiction of this court, this court has jurisdiction to entertain to try the petition. The respondent No. 2 is having its work place within the jurisdiction of this court, therefore, this court has jurisdiction to try the present petition.
ISSUE No. 210. The testimony of Sh. Amit Kumar, PW-2, is relevant on this issue. PW-2 Sh. Amit Kumar stated that on 29th August'2009 the deceased Sh. Anil Kumar, was going on motorcycle with his brother Sh. Amit Kumar and when they stopped their motorcycle for urinating, a truck bearing No. HR-38-M-9282 being driven rashly, negligently and at a high speed, came from behind, from the wrong side and hit the motorcycle and to the deceased Sh. Anil Kumar who was standing near to the motorcycle. The deceased Sh. Anil Kumar was removed to Astha Nursing Home, Baraut and thereafter was shifted to Maharaja Agrasen Hospital, Punjabi Bagh, Delhi where he succumbed to the injuries on 30.08.2009. An FIR No. 338/09 under section 2789/304-A/427 IPC was registered.
11. The FIR, Site-plan, postmortem report and the testimony of the PW-2 taken together, fully establish the death of the deceased caused by the injuries sustained by him involving vehicle( truck) bearing registration MACT No: 144/10 Page No. 3/9 No. HR-38-M-928 in a road accident. There is nothing on record to dispel the inference that deceased Sh. Anil Kumar, died on account of injuries sustained by him in a road accident which occurred on 29.08.2009 because of rash and negligent driving of vehicle( Truck) bearing No. HR-38-M-928 being driven by the respondent No. 1. The testimony of PW-2 is consistent and reliable. The issue No. 2 is decided in favour of petitioners and against the respondent.
ISSUE NO. 312. PW-1 Sewa Ram deposed that deceased Anit Kumar was 21 years of age at the time of accident and was employed with M/s. Cipla Ltd. and was earning Rs. 20,000/- per month and used to give a sum of Rs. 16000/- to Rs. 17000/- per month for running the household expenses. During cross-examination he stated that he was an agriculturist and was able to earn Rs. 10,000/- to Rs. 12,000/- per month and he was having two daughters and one son. His son Sh. Amit was married and was elder to the deceased.
13. The PW-3 Sh. Aurobinda Panda, Management Staff Member, HR department of M/s. Cipla Ltd., exhibited the appointment letter of deceased Sh. Anil Kumar as Ex. PW-3/2, original biodata of deceased as Ex. PW-3/3, original nomination forms under different schemes as Ex. PW-3/4(colly). PW-3 Sh. Aurobinda Panda stated that he had also brought the copy of letter regarding full and final settlement. He further stated that he has also brought the receipt executed by Sh. Sewa Ram, father of the deceased, regarding receiving of Rs. 17,96,871/-, towards full and final settlement of gratuity, group insurance. PW-3 also stated that out of Rs. 17,96,871/-, Rs. 15 Lacs were paid towards group insurance policy. PW-3 stated that the insurance company has insured its employees and in case of accidental death, a lump sum payment of Rs. 15 Lac was made to the LR's of the deceased and the insurance premium was paid by the company and no amount was being deducted from the salary of the MACT No: 144/10 Page No. 4/9 employee. The photocopy of receipt is Ex. PW-3/5. During cross- examination PW-3 admitted that deceased was a management trainee and was not a permanent employee. No status report or appraisal was made regarding work and conduct of Sh. Anil Kashyap as he had worked hardly for one month. An amount of Rs. 15,761.92/- was paid as a salary and other dues as per details given in Ex. PW-3/5. He stated that a sum of Rs. 2,17,769/- was paid as gratuity and Rs. 62,000/- towards employee depository link insurance and Rs. 1341/- as provident fund. I have gone through the material on record. In the present case as noted above, the monthly salary of the deceased at the time of death was Rs. 11729/-per month. The deceased worked in the Cipla Ltd only for month and was a management trainee and was not a permanent employee. There is no material on record to show that deceased would have got increment in the salary in future. Therefore, the following the judgment ' Sarla Verma Vs. DTC', no amount towards future can be added in the present salary. The annual income of the deceased would be Rs. 1,40,748/-(11729 x 12).
14. Interest of justice in the present case would be met if 1/2 i.e. Rs. 70374/- is deducted as the personal and living expenses of the deceased (as the deceased was bachelor). After such deduction the contribution to the family (dependants) is determined as Rs. 70,374/- per annum. The multiplier applicable would be 14 considering the age of the mother of deceased at the time of accident (the age of mother of deceased was 44 years at the time of accident as per voter ID card Ex.PW-1/3). The total compensation on account of dependency comes to Rs. 9,85,236/- (70374 x 14).
15. In addition, the claimants will be entitled to a sum of Rs. 10,000/- towards love and affection, Rs. 10,000/- towards loss of estate and Rs. 5,000/- towards funeral expenses. Thus, the total compensation will be Rs. 10,10,236/-(Rounded off to Rs. 10,10,250/-).
MACT No: 144/10 Page No. 5/9LIABILITY
16. The counsel for insurance company contended that the claimants have already received a sum of Rs. 15 Lac from the employer of the deceased towards group insurance policy, therefore, the claimants are not entitled for any amount under M. V. Act. Ld. Counsel for insurance company relied upon the judgments "National Insurance Company Ltd. Vs. Sebastian K. Jacob, 2009(2) T. A. C. 617 ( S. C.). On the other hand, counsel for petitioner contended that the amount granted under group insurance policy is nothing to do with the compensation to be granted under M. V. Act, therefore, the petitioner is entitled for compensation.
17. In the present matter the claimants received Rs. 15,00,000/- from the employer of the deceased towards group insurance policy. The PW-3 has deposed that the deceased was covered under Group Insurance Policy and Rs.15 lacs were paid to the claimants by Cipla Ltd. It is also stated by PW-3 that insurance premium was paid by the company and no amount was deducted by the said company from the salary of the employees. From the testimony of PW-3 it is apparent that the employees of the said company were covered under Group insurance policy for accidental death. It cannot be said that the said group insurance was taken only with regard to the death of the employee due to motor accident. The claimants got the said amount from the employer of the deceased because of the deceased being the employee of the said firm and having served the said company. In my opinion the said amount cannot be taken into consideration while granting compensation under Motor Vehicle Act. Further in the judgment, " Sushma Bhatnagar and others Vs. Lal Singh and others", III (2010) ACC 681, Hon'ble Delhi High Court observed as under:-
"The claim of compensation under Motor Vehicles Act is independent of other benefits granted to the dependents of the deceased by employer of the deceased granted by employer would have been there even in case of natural death. The death of an employee may take place due to illness or due to any other reasons. The compensation MACT No: 144/10 Page No. 6/9 granted under Motor Vehicles Act cannot be reduced because the dependents got some amount from the employer of the deceased."
The above said judgment clearly covers the issue before this court. The judgment cited by counsel for insurance company is not applicable under the facts and circumstances of the present case.
18. Since Insurance company has admitted the policy as on date of accident therefore respondent No. 3/insurance company is liable to pay the compensation amount.
19. There being no evidence of violation of the policy condition and there being no evidence to support the permitted defence U/s. 149(2) of the M.V. Act, I am unable to grant the recovery rights. Therefore, insurance company shall make good the compensation in terms of the accepted policy.
RELIEF
20. While granting the relief to petitioner, I am also to award the interest @ 7.5% p.a on the above said amount of Rs. 9,39,862/- from the date of filing of petition till realization of the amount.
21. For the aforesaid reasons, I pass the following award :-
AWARD
22. In view of the above the petition is allowed. The respondent No. 3 is liable to pay the compensation of Rs. 10,10,250/-, inclusive of interim compensation. Since the offending vehicle is insured with the insurance company, the insurance company is hereby directed to pay a compensation of Rs. 10,10,250/-, inclusive of interim compensation. The respondent No. 3 shall also pay interest @ 7.5% p.a. (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioner. The compensation amount be deposited within one month. The claimants are entitled to the compensation in the following proportions along with corresponding MACT No: 144/10 Page No. 7/9 interest :-
(a)Petitioner No 1 : Rs. 1,01,025/- along with corresponding interest.
(b)Petitioner No 2 : Rs. 9,09,225/- along with corresponding interest.
23. The award amount along with interest be deposited by respondent No. 3 with UCO Bank, Nodal Officer through Nodal Officer, Karkardooma Branch, within 30 days in the petitioners' accounts.
24. Upon the aforesaid amount being deposited, the UCO Bank is directed to keep the amount awarded to petitioners in fixed deposit in the following manner :-
Petitioner No. 1● Fixed deposit of 50% of the awarded amount for a period of two years and rest of the amount be released to the petitioner No. 1 by transferring the same to his savings bank account.Petitioner No. 2
● Fixed deposit of Rs. 1,50,000/- (Rs. 1.5 Lac) each in the name of petitioner No. 2 for a period of two years, three years, four years and six years. The rest of the amount be released to the petitioner No. 2 by transferring the same to her savings bank account pass book.
25. The interest on the aforesaid FDR shall be paid monthly by automatic credit of interest in the savings account of petitioners.
26. Withdrawal from the aforesaid account shall be permitted to the petitioners after due verification and the bank shall issue photo identity card of petitioners to facilitate identity.
27. No cheque book be issued to the petitioners without the permission of the court.
MACT No: 144/10 Page No. 8/928. The original fixed deposit receipts shall be retained by the bank in the safe custody. However, the original pass book shall be given to the appellant along with photocopy of the FDRs.
29. The original fixed deposit receipts shall be handed over to the petitioner on the expiry of the period of the FDRs.
30. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of the court.
31. Half yearly statement of account be filed by the bank in the court.
32. On the request of the petitioner, the bank shall transfer the saving account to any other branch of UCO bank according to the convenience of the petitioners.
33. The petitioner shall furnish all the relevant documents for opening of the saving bank account and fixed deposit account to Nodal Officer, UCO Bank, Karkardooma Court, Delhi.
34. Copy of this order be also sent to Nodal Officer, UCO Bank, Karkardooma Branch, Delhi, along with two recent passport size photographs of petitioners with court stamp to the bank for facilitating the compliance.
35. List for reporting compliance on 18.02.2012.
36. A copy of the award be given free of cost to the parties concerned.
ANNOUNCED IN THE OPEN ( Arvind Kumar )
COURT ON 20.12.2011 Presiding Officer: MACT:
Karkardooma Court
Delhi
MACT No: 144/10 Page No. 9/9