Delhi District Court
) Smt. Geeta Devi W/O Late Sh. Lala Ram vs ) Rajesh Kumar S/O Sh. Mange Ram (Driver) on 2 June, 2012
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IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT & SESSIONS
JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
ROHINI COURTS, DELHI
(MACT No. 04/12)
1) Smt. Geeta Devi W/o Late Sh. Lala Ram
2) Naveen Kumar S/o Late Sh. Lala Ram (aged 13 years son)
3) Neha D/o Late Sh. Lala Ram (aged 11 years daughter)
4) Nitiksha D/o Late Sh. Lala Ram (aged 9 years daughter)
5) Nitesh S/o Late Sh. Lala Ram (aged 8 years son)
6) Janbi D/o Late Sh. Lala Ram (aged 5 years daughter)
(petitioner no. 2 to 6 being minor through their mother
natural guardian Smt. Geeta Devi petitioner no.1)
All R/o H. No. 11-B, Swatantra Nagar, Narela,
Delhi-110040
And also permanent R/o Village Shyam Nagar, Kakroi Road,
Valmiki Basti, Distt. Sonipat, Haryana -------Petitioners
Versus
1) Rajesh Kumar S/o Sh. Mange Ram (Driver)
R/o Mandora, Distt. Sonipat, Haryana
2) Devender S/o Sh. Ramdhari (Owner)
R/o 41/10, Safiyabad Road, Near J.K. Farm House,
Gautam Colony, Narela, Delhi.
3) National Insurance Company Ltd. (Insurer)
Issuing Office: Wazirpur Branch
Mohan Tower, 1st Floor, Commercial Complex,
Ring Road, Wazirpur, Delhi-110052 ----Respondents
Date of filing of DAR----- 03.11.2011
Date of decision------------02.06.2012
(Application u/s 166 and 140 of Motor Vehicles Act
for grant of compensation)
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JUDGMENT:-
It is the case of the LRs of the deceased Sh. Lala Ram (herein after referred to as deceased) aged about 40 years that on 07.09.2011 at about 5.03 pm, -2- .
the deceased was going to supply in the market bakery, when he reached near CRPF Camp Narela - Bawana Road, the offending vehicle i.e. RTV Mini Bus bearing No. DL-1VA-2425 hit him from back side. Due to this impact the deceased fell down on the road and the concerned police officials took him to Maharishi Valmiki Hospital, Pooth Khurd, Delhi, where he was declared brought dead. Thereafter his postmortem was conducted at BJRM Hospital, Jahangirpuri, Delhi on 08.09.2011. The respondent no. 1 apprehended at the spot with the offending RTV Mini Bus bearing No. DL-1VA-2425. A criminal case under section 279/304A IPC was registered against respondent no. 1 vide FIR No. 442/11 in police station Narela, Delhi. It is further stated that the accident occurred due to rash and negligent driving of respondent no. 1.
Petitioner no. 1 being widow, petitioner no. 2 to 6 being minor sons and daughters of the deceased alleged that the deceased was working as supervisor with Millennium Builders Engg. & Constructors, 302, Guru Apartment, Plot No. 9, Sector-9, Rohini, Delhi-110085 and was earning Rs. 10,000/- per month. They claimed sum of Rs. 30 lakhs as compensation alongwith interest @ 12% p.a. from respondents being driver, owner and insurance company of the offending vehicle jointly and severally.
Respondent no. 1 & 2 driver & owner of the offending vehicle in their joint written statement totally denied happening of an accident with their vehicle. Respondent no. 3 insurance company in its written statement admitted that the offending vehicle was insured with it but tried to avoid its liability on some technical grounds.
On the basis of pleadings of the parties, following issues were framed on 13.01.2012 by my ld. Predecessor:
1) Whether Sh. Lala Ram S/o Late Sh. Karan Singh died on account of injuries suffered due to road accident on 07.09.2011 at about 5.03 p.m. near CRPF Camp Narela - Bawana Road within the -3- .
jurisdiction of P.S. Narela due to rash and negligent driving of RTV Mini Bus bearing No. DL-1VA-2526 being driven by respondent no.1? OPP
2) Whether the LRs of the deceased are entitled to compensation, if so to what an extent and from which of the respondents? OPP
3) Relief.
In order to prove their case, petitioners examined Smt. Geeta Devi, widow of the deceased as PW-1. PW-1 in her examination tendered her affidavit in evidence as Ex.PW1/A and reiterated the facts as stated in the petition and proved the copy of FIR, charge sheet, postmortem report, site plan, photograph of cycle rickshaw and the copy of D/L of respondent no. 1, R.C. of offending vehicle and insurance cover note as Ex.PW1/1 (collectively 30 pages), educational certificate of the deceased Lala Ram as Ex.PW1/2, copy of ration card as Ex.PW1/3, birth certificate of her children as Ex.PW1/4. Nothing incriminating has come out in the cross examination of PW-1. No evidence was led on behalf of the respondents.
I have heard counsel for the parties and have perused the entire record. My decision on the above mentioned issues is as under:
Issue No.1:
The onus of proving this issue was upon the petitioners. The principles to be followed in the case of motor accident claim have been laid down by Hon'ble Guwahati High Court in case cited as Renu Bala Paul and Ors. vs. Bani Chakraborty and Ors. 1999 ACJ 634 wherein it is held that:
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the standard proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the -4- .
Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society.
In N.K.V. Bros (P) Ltd. vs. M. Karumai Ammal & Ors. (1980) 3 SCC 475, Mr. Justice V.R. Krishna Iyer and Mr. Justice D.A. Desai, Division Bench of Hon'ble Supreme Court has observed as under:-
"In Road accidents are one of the top killers in our country, especially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
From the record as well as from the criminal case record placed on record by the IO, it revealed the manner in which accident had happened. The RTV Mini Bus bearing No. DL-1VA-2425 hit the deceased from back side and there was no fault on the part of the deceased. I find no ground to disbelieve the investigation conducted by the police. No defence was pressed as on verification the D/L of RTV Mini Bus driver was found to be valid. It is not the case of the respondents no. 1 & 2 that they had made any complaint to any authority against the alleged false implication of respondent no. 1 in criminal case or there was any enmity with the legal heirs of deceased or IO which facilitated them to involve him in the false case. Accordingly, it is held that the accident has taken place with offending RTV Mini Bus bearing No. DL-1VA-2425 due to rash and negligent driving by its driver and there was no fault or negligence on the part of the deceased. The factum of accident that it -5- .
was caused due to rash and negligent driving of the offending vehicle is also not disputed by the Insurance Company and driver and owner on the basis of DAR report filed after verification of all particulars duly verified by the IO of the case. In view of the above discussions, this issue is decided in favour of petitioners and against the respondents.
Issue no. 2:-
Deceased expired on 08.09.2011 before reaching the hospital and there is no expenses incurred on his medical treatment. He had left behind his wife and five minor children i.e. two minor sons and three minor daughters. He was aged about 40 years at the time of accident as per the petitioners. PW-1 stated that the deceased was working as supervisor with Millennium Builders Engg. & Constructors, 302, Guru Apartment, Plot No. 9, Sector-9, Rohini, Delhi-110085 and was earning Rs. 10,000/- per month. PW-1 further stated in his evidence that the deceased was also working as a supplier of bakery item from Bhardwaj Bakery House, Tulsi Bhawan, Gali No. 2, Lampur Road, Narela, Delhi and the salary from which was Rs. 4000 - 5000 per month. There is a certificate of Millennium Builders Engg. & Constructors on record in which the monthly salary of the deceased has been given as Rs. 10,000/-. But two partners of the said company when appeared in the court totally denied the employment of the deceased with their firm. Hence, after relying upon the latest judgment of Justice J.R. Midha of Hon'ble Delhi High Court, I take the monthly income of the deceased on the date of accident as Rs. 8500/- p.m. Accordingly, I am of the view that the amount of Rs. 8500/- per month has to be taken into consideration while counting monthly income of the deceased.
As per the postmortem report, the deceased was 38 years of age. But in the educational certificate of the deceased Lala Ram Ex.PW1/2 his date of birth has been given as 02.01.1971, as per which the age of the deceased on the date of accident i.e. 07.09.2011 was approximately 40 years and 8 months. Thus the age of the deceased on the date of accident is to be taken as 41 years. Hence in view of -6- .
the judgment of Hon'ble Supreme Court given in Sarla Verma vs. DTC 2009 ACJ 1298, multiplier of 14 has to be applied upon the income of the deceased.
Since the age of the deceased was 41 years on the date of accident, so keeping in view his age at the time of death, future prospectus of 30% has to be added in his income as per Sarla Verma's decision. Hence the monthly income of the deceased comes to Rs. 11,050/- (Rs. 8500 + 30%).
Deceased had left behind his wife and five minor children i.e. two minor sons and three minor daughters. Thus as per the decision of Hon'ble Supreme Court given in Sarla Verma's case, by treating six dependents upon the deceased, the deduction of 1/4th from income of deceased has to be made upon his personal expenses. Hence after deducting 1/4th of the amount from monthly income of Rs. 11,050/-, the net amount of dependency per month comes to Rs. 8,287.75 paisa. Accordingly, in this case, loss of dependency is assessed at Rs. 13,92,342/- in round figure (Rs. 8287.75 x 12 x 14).
Petitioners have not brought on record any document regarding expenses incurred on funeral and last rites of the deceased. It is a judicial noticeable fact that normally some expenses are incurred upon cremation, Chotha or Theharvin ceremonies etc. Hence, I deem it proper to grant lump sum Rs. 10,000/- as funeral charges.
Petitioners in my view are also required to be awarded sum of Rs. 1,50,000/- towards loss of estate (Rs. 25,000/- each to six petitioners) and Petitioner no. 1 is also entitled to sum of Rs. 50,000/- towards loss of consortium in view of the decision of Hon'ble High Court in Bedo Devi & Ors. Vs Jagat Singh & Others, reported in 2010 ACJ 2249. Another sum of Rs. 1,50,000/- (Rs. 25,000/- each to all six petitioners) towards loss of love and affection, loss of company of deceased, parental guidance and encouragement, trauma and loss of other -7- .
discomfort is awarded to all the petitioners after relying upon the judgment of Hon'ble Supreme Court in Radhika Gupta & Ors Vs Oriental Insurance Co. Ltd. & Others reported in 2010 ACJ 758 and the judgment of Hon'ble High Court in Bedo Devi & Others Vs Jagat Singh & Others reported in 2010 ACJ 2249. Petitioners are also entitled to be paid a sum of Rs. 50,000/- towards loss of care & attention and expenses to be borne for the performance of gratuitous services as per the latest judgment of Mr. Justice G.P. Mittal of Hon'ble Delhi High Court.
Respondent no. 3 insurance company could not bring on record any evidence to point out that it is not liable to pay compensation amount as assessed by the court or any term or condition of the insurance policy was breached by the insured or it has any limited liability. Keeping in view the existence of valid insurance policy, respondent no. 3 alone becomes entitled to pay entire compensation amount.
In view of the above discussions, this issue is decided in favour of petitioners by holding that they are entitled to get the following total compensation from the respondent no. 3 only:
1) Loss of dependency======================Rs. 13,92,342/-
2) Funeral charges ======================== Rs. 10,000/-
3) Loss of estate===========================Rs. 1,50,000/-
4) Loss of consortium=======================Rs. 50,000/-
5) Loss of love and affection etc.===============Rs. 1,50,000/-
6) Loss of care & attention etc.================ Rs. 50,000/-
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Total Rs. 18,02,342/-
Hence petitioners are entitled to get Rs. 18,02,342/- as compensation from the respondent no. 3 alongwith interest at the rate of 9% p.a. from the date of filing of -8- .
DAR i.e. 03.11.2011 till realization, as per the judgment titled as New India Assurance Co. Ltd. vs. Bhudhia Devi & others, 2010 ACJ 2045.
Issue no. 3 (Relief):-
On the basis of findings given above, present petition is disposed off. Respondent no. 3 insurance company is directed to pay sum of Rs. 18,02,342/- to the petitioners along with interest at the rate of 9% p.a. from 03.11.2011 till this amount is fully realized.
Respondent no. 3 Insurance company to pay further sum of Rs. 70,000/- as counsel fee and sum of Rs. 7,000/- as out of pocket expenses to counsel for petitioner Sh. H.R. Jha, Enrollment No. D-03/98, Adv. by preparing separate cheque in the name of counsel as per the judgment of Hon'ble Mr. Justice J.R. Midha titled as Sat Prakash vs. Jagdish, II (2010) ACC 194. If the compensation amount awarded alongwith all the ingredient like lawyers fees and out of pocket expenses is not deposited with this Tribunal within 30 days of the date of order, Insurance company will be liable to pay interest @ 12% from the date of filing of DAR till realization.
It is further ordered that out of the compensation amount, 40% of the entire award amount inclusive of upto date interest be given to petitioner no. 1 (widow) to be deposited in the form of FDR initially for a period of 5 years with liberty to withdraw monthly interest through saving bank account. Remaining amount alongwith accrued interest be equally divided amongst five minor petitioners no. 2 to 6 to be kept in the form of FDR till the age of their attaining majority / marriage respectively with right to withdraw monthly interest by their mother petitioner no. 1 through her saving bank account, with liberty to get them encashed at the time of their attaining majority/ marriage. These FDRs be got prepared from State Bank of India, Rohini Courts, Delhi branch and shall not be encashed without permission of the court. No loan or advance shall allow to be taken on these FDRs.-9-
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Respondent no. 3 insurance company is directed to prepare the separate cheques of the compensation amount as per above order. Copy of this judgment be given to petitioners and counsel for respondent no. 3 insurance company for compliance. File be consigned to record room.
Announced in the open (D.K. MALHOTRA)
Court on 02.06.2012 JUDGE, MACT (OUTER-II)
DELHI