IN THE COURT OF MS. [ENTITY] : PRESIDING OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNAL : KARKARDOOMA COURTS : EAST DISTRICT : DELHI MAC PETITION NO. [CASE NUMBER] Unique I.D. No.02402C0285052010 1. Smt. [ENTITY] W/o Late Shri Harbhajan Singh 2. Miss [ENTITY] D/o Late Sh. Harbhajan Singh Both Resident of H.No. 11/411, Trilok Puri, Delhi. PETITIONERS VERSUS 1. Sh. [ENTITY] S/o Sh. R.C. Joshi, R/o H.No. T2/1 Ward no.3, Mehrauli, Delhi. OWNER 2. [ENTITY] S/o Sh. Arun Kumar Kanojia R/o Gali no.8, Khoda Colony, Pragati Vihar, Delhi. DRIVER 3. HDFC ERGO General Insurance Company Ltd. Plot no. C9, 3rd Floor, Pearl Best HeightsII, Netaji Subhash Palace, Pitampura, New Delhi110034 INSURER 4. Sh. [ENTITY] S/o Lt. Sh. Raja Ram R/o D1/134, New Kondli, Delhi96. ACTUAL OWNER RESPONDENTS MAC PETITION NO. 574/10 Unique I.D. No.02402C0306082010 1. Sh. [ENTITY] S/o Sh. Ram Gopal Gupta, H.No. B309, Gali no.18, First Cross Road, [CASE NUMBER] Page : 1/17 Sonia Vihar, Delhi94. PETITIONER VERSUS 1. Sh. [ENTITY] S/o Sh. R.C. Joshi, R/o H.No. T2/1 Ward no.3, Mehrauli, Delhi. OWNER 2. [ENTITY] S/o Sh. Arun Kumar Kanojia R/o Gali no.8, Khoda Colony, Pragati Vihar, Delhi. DRIVER 3. HDFC ERO General Insurance Company Ltd. Plot no. C9, 3rd floor, Pearl Best HeightsII, Netaji Subhash Palace, Pitampura, New Delhi110034 INSURER 4. Sh. [ENTITY] S/o Lt. Sh. Raja Ram R/o D1/134, New Kondli, Delhi96. ACTUAL OWNER RESPONDENTS Presented on : 18.09.2010 Reserved on : 24.07.2014 Decided on : 24.07.2014 J U D G M E N T
1. By a common judgment, I shall dispose of the two claim petitions i.e. [CASE NUMBER] filed by the petitioners u/[SECTION] & [SECTION] of [ACT]. In [CASE NUMBER], petitioners have claimed compensation for fatal injuries upon Master [ENTITY], son of petitioners. In [CASE NUMBER], petitioner [ENTITY] has claimed the compensation for the injuries suffered by him in the [CASE NUMBER] Page : 2/17 road side accident dated 22.08.2010.
2. The FIR was registered on the complaint of petitioner/injured [ENTITY] who stated that on 22.08.2010 at about 6.15 p.m., he was travelling in a RTV Bus bearing No. DL1VA0141 alongwith many other passengers; that the bus was driven by respondent no.2 at a very high speed and in a rash and negligent manner; that the driver was constantly being warned by the passengers to drive the vehicle slowly. As the RTV reached near Kalyan Puri, the driver/respondent no.2 lost his control over the RTV and resultantly, it jumped and overturned, as a result of which, one passenger Master [ENTITY] sustained fatal injuries. Complainant [ENTITY] also suffered grievous injuries.
3. A case FIR No. 287/10, u/[SECTION] [ACT] was registered at P.S Kalyan Puri against respondent no.2.
4. The petitioners in [CASE NUMBER] state that deceased Master [ENTITY] was studying in 10th class and was an intelligent student. He had a bright future ahead and could have attained good position. It is stated that due to untimely death of deceased, the petitioners and other relatives faced mental shock, great pain and agony.
5. It is stated that respondent no.1 is the owner, the respondent no.2 is the driver of offending bus; that respondent no.3 is the insurer of the offending bus and respondent no.4, being in actual possession [CASE NUMBER] of offending vehicle at the time of accident, they all are jointly and severally liable to make the payment of compensation to the petitioners.
6. It is pertinent to mention that respondent no. 1 owner did not appear nor filed the written statement. The respondent No.2 in his written statement stated that he was driving the vehicle with caution; that being a heavy rainy day, and water logged everywhere, a rickshaw puller came in front of offending RTV and to save the said rickshaw puller, the respondent no.2 applied brakes and in the process, the vehicle turned turtle.
7. The respondent no.3 in written statement has stated that the respondent no.2 was not holding the driving license as on the date of accident; that the offending vehicle bearing registration No. DL IVA0141 was insured with respondent no.3 w.e.f. 18.12.2009 to 17.12.2010.
8. The respondent no.4 in written statement, contended that he had only got the offending vehicle released on Superdari by virtue of power of attorney executed by the registered owner in his favour; that his role being confined to this only, he was not liable to pay any compensation.
9. On the basis of the pleadings from both the parties, following issues were framed in [CASE NUMBER] by Ld. Predecessor on [CASE NUMBER] 13.07.2012 :
i) Whether deceased (inadvertently mentioned as petitioner and be read as deceased) suffered fatal injuries in a road accident on 22.08.2010 involving vehicle i.e. RTV Bus bearing registration no. DLIVA0141 driven allegedly in a rash and negligent manner by R2?
ii) To what amount of compensation, if any, the petitioners are entitled to and from whom?
iii) Relief.
10.Following issues were framed in [CASE NUMBER] by Ld. Predecessor on 13.07.2012 :
i) Whether petitioner suffered injuries in a road accident on 22.08.2010 involving vehicle i.e. RTV Bus bearing registration no. DLIVA0141 driven allegedly in a rash and negligent manner by R2?
ii) To what amount of compensation, if any, the petitioner is entitled to and from whom?
iii) Relief.
11.Both the cases were consolidated for recording common evidence. In [CASE NUMBER] [CASE NUMBER], Smt. [ENTITY], mother of deceased examined herself as PW1 and filed her evidence by way of affidavit, Ex.PW1/A. She relied upon the documents i.e. Cremation Receipt as Ex.PW1/1, Birth Certificate of her son as Ex.PW1/2, Letter from school of deceased as Ex.PW1/3; identity card of [CASE NUMBER] Page : 5/17 deceased as Ex.PW1/4; her own voter Icard as Ex.PW1/5; Ration Card as Ex.PW1/6; report card of her deceased son as Ex.PW1/7 and criminal case record (colly. 36 sheets) as Ex.PW1/8. The insurance company has examined Sh. [ENTITY], Asstt. Manager of company as R3W1 in both petitions. He has proved the Policy Package as Ex.R3W1/A and notice under [SECTION] [ACT] as Ex.R3W1/B issued upon the owner of offending vehicle.
12.In [CASE NUMBER], petitioner [ENTITY] has examined himself as PW1 and tendered his affidavit as Ex.PW1/1.
13.The Respondent no.1, 2 & 4 however have not led any evidence in rebuttal.
14.I have heard Ld. Counsel for parties, perused the entire material carefully in the light of relevant statutory provisions of law and my findings on the issues are as follows : ISSUES NO.1 ( IN [CASE NUMBER]) :
Whether petitioner suffered injuries in a road accident on 22.08.2010 involving vehicle i.e. RTV Bus bearing registration no. DLIVA0141 driven allegedly in a rash and negligent manner by R2?
15.The testimony of PW1, injured [ENTITY] is corroborated by the criminal case record. On his complaint, FIR was registered. PW1 was travelling in the offending RTV and is the eye witness of the [CASE NUMBER] accident. He stated that driver was constantly being cautioned to drive slow but due to his rash and negligent driving, he lost control over bus and the accident happened. PW1 has proved his treatment record as Ex.PW1/1, as per which he suffered fracture of mandible besides other injuries all over his body. In the accident, Master [ENTITY], another passenger succumbed to the injuries. There is nothing to disbelieve the testimony of PW1 as no contrary evidence has come up on record. The issue thus stands decided in favour of petitioner and against respondents. ISSUE NO.2 (IN [CASE NUMBER]) :
To what amount of compensation, if any, the petitioner is entitled to and from whom?
16.PW1 sustained grievous injuries i.e. fracture of mandible, multiple wounds all over his body and other injuries. He was working as a professional driver and remained bed ridden for about 2 months. The accident curtailed his working capacity for a considerable time.
17.Considering over all circumstances, the nature of injuries and the period of treatment, the petitioner is awarded a compensation of Rs. 50,000/ for pain and suffering.
18.Keeping in view the treatment undergone by the injured as also the OPD visits, I hereby award a lumpsum amount of Rs.5,000/ towards the medical expenses.
[CASE NUMBER]
19.Petitioner while examined by the court on 14.07.2014, stated that he was working as Commercial Driver and earning around Rs. 8,000/ p.m. There is nothing on record in support of his job or avocation. But it can be safely assumed that he would have remained without work at least for a period of two months. In the absence of any income proof or educational qualification, reliance has to be placed upon minimum wages payable to the unskilled workman on the date of accident which were Rs.5,278/ p.m.
20.Therefore, the claimant is awarded compensation for two months i.e. Rs.10,556.00 (i.e. Rs.5,278.00 x 2) for Loss of Wages.
21.The petitioner would have needed the help of an attendant at least for a period of two months. In [PRECEDENT], the Hon'ble High Court of Delhi has held that there cannot be any deduction if domestic help is obtained from a family member. The Hon'ble High Court has observed as under : " A wrong doer cannot take advantage of this 'domestic element'. If the mother renders service to her, instead of a nurse, it is right and just that she should recover compensation for the value of the services that the mother has rendered to her. Mother's services were necessitated by the wrong doing and the injured should be compensated for it. (Cunnigharn v. Harrison 3 All E.R.
463). The services of a wife and mother are worth more [CASE NUMBER] than those of a housekeeper because she is in constant attendance and does many more things than a house keeper. ([PRECEDENT])."
22. This judgment was again relied upon by the Hon'ble High Court of Delhi in the case of [PRECEDENT] 04.07.12. Therefore, on a lumpsum basis, the claimant is awarded a compensation of Rs.8,000/ for two months as Attendant's Charges.
23. The petitioner is also awarded compensation of Rs.7,500/ towards Special Diet and Rs.7,500/ for Conveyance Charges. Keeping in view the facts and circumstances, I consider the following amount to be the just compensation to petitioner [ENTITY] : 1 Towards pain and sufferings Rs. 50,000.00 2 Towards servant/attendant for 2 months Rs. 8,000.00 3 Towards conveyance and special diet (without bills) Rs. 15,000.00 4 Towards medical expenses Rs. 5,000.00 5 Towards loss of earning for 2 months (Rs.5,278.00 Rs. 10,556.00 x 2) Total = Rs.88,556.00 Therefore, in my opinion, the petitioner is entitled to Rs. 88,556/ which shall be the just compensation to him. [CASE NUMBER] ISSUE NO.1 (IN [CASE NUMBER]) :
Whether deceased (inadvertently mentioned as petitioner and be read as deceased) suffered fatal injuries in a road accident on 22.08.2010 involving vehicle i.e. RTV Bus bearing registration no. DLIVA0141 driven allegedly in a rash and negligent manner by R2?
24.Smt. [ENTITY], PW1 deposed that on 22.08.2010, at about 6:15 p.m., her son Master [ENTITY] was travelling in RTV Bus bearing registration No. DLIVA0141, driven by respondent no.2. The same was being driven at a high speed. Respondent No.2 while driving so, lost his control and the vehicle turned turtle, resulting in fall of her son, who sustained fatal injuries and was 'declared dead' by the doctors of LBS Hospital. PW1 has proved the criminal case proceedings as Ex.PW1/8. She stated that the accident occurred purely because of rash and negligent driving of RTV by the driver.
25.I have gone through the statement of injured [ENTITY], on whose complaint, FIR was registered at P.S. Kalyanpuri. The facts are supported and corroborated by IO of the case who had conducted the investigation in the matter. Reliance can be placed upon the authority in [PRECEDENT].
26.In [PRECEDENT], the Hon'ble Guwahati High Court has observed as under :
" 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 of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the 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."
27.In the case of [PRECEDENT], the Hon'ble High Court of Delhi has held that :
"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 [PRECEDENT] (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 the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet under [SECTION], [ACT] against the driver; (iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) [CASE NUMBER] recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the [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 the part of the driver".
28.In the case titled as [PRECEDENT] where adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there is nothing on record to show that the petitioner had any enmity with the driver of the offending vehicle so as to falsely implicate him in the case.
29.The FIR, chargesheet, site plan, postmortem report, mechanical inspection report and testimony of PW1, taken together, fully establish that Master [ENTITY] succumbed to his injuries in a road side accident. The contention of Ld. Counsel for respondent no.2 that the accident happened due to the coming of rickshaw puller in front of RTV Bus is without force. There is no evidence in support of the same. Case summary of the deceased issued by the hospital [CASE NUMBER] shows that it was a case of Road Traffic Accident. The material on record leaves no doubt that deceased met with an accident when he was thrown out from the offending vehicle after it turned turtle. There is nothing on record to dispel the inference that deceased died on account of injuries sustained by him in a road accident which occurred on 22.08.2010 involving the RTV Bus bearing registration no.DLIVA0141 being driven by respondent no.2. ISSUE NO.2 (IN [CASE NUMBER]) :
To what amount of compensation, if any, the petitioners are entitled to and from whom?
30.PW1 stated that [ENTITY] was her son and was 16 years of age. This fact is not controverted by any of the respondents. From Ex.PW1/2, PW1/4 and PW1/7, date of birth of deceased Master [ENTITY] is shown as 12.10.1994. Thus, the age of deceased child is taken to be 16 years.
31.This court is guided by the settled law on the point of the income, to be taken in case of death of minor, as observed by Hon'ble Apex Court in [PRECEDENT]. It was reiterated in the judgment of Hon'ble Supreme Court in [PRECEDENT], where after taking into account the judgments of Hon'ble Apex Court, a compensation of Rs.3,75,000/ was awarded in respect of [CASE NUMBER] Page : 13/17 death of a 13 years old boy. This court is also guided by the dictum laid down in The New India Assurance Company Ltd. v. [ENTITY] & Ors. (decided on 22.03.2012 by Hon'ble High Court Delhi) and in the matter of [PRECEDENT].
32.Deceased was 16 years of age and was studying in 9th Class in Govt. Boys Secondary School, Kalyanpuri. Following the [SECTION] of the [ACT] and taking the notional income of the deceased to be Rs. 15,000/ p.a. and applying the multiplier of 15, the petitioners are entitled to loss of dependency of Rs. 2,25,000/ (Rs. 15,000/ X 15). In terms of the judgment of the Hon'ble Supreme Court in "[PRECEDENT]", and in [ENTITY] (Supra), the petitioners are entitled to compensation towards Future Prospects of Rs.75,000/. They are also entitled for nonpecuniary damages of Rs. 75,000/.
33.Thus, the total compensation would be Rs.3,75,000/.
34.I accordingly award an amount of compensation of Rs.3,75,000/ in favour of the petitioners and against respondents.
LIABILITY
35.The insurance company has examined Sh. [ENTITY], Asstt. Manager of company as R3W1 in both petitions. He has [CASE NUMBER] proved the Policy Package as Ex.R3W1/A and notice under [SECTION] [ACT] as Ex.R3W1/B issued upon the owner of offending vehicle.
36.The contention of insurance company is that the driver was holding a driving licence to drive only LMV (Commercial) and was not authorized to drive the RTV Bus. The driving licence which is part of Ex.PW1/4 clearly shows the driver was not authorized to drive the offending vehicle. Thus, policy conditions are violated and respondent no.3 cannot be fastened with the liability and is entitled to recovery rights against respondents no.1, 2 and 4 as per law.
37.Since definition of owner under [SECTION] of the [ACT] is not exhaustive, it is to be construed widely. The expression "Owner" must include the person, who has the actual possession and control of vehicle and under whose directions and commands, driver is obliged to operate the vehicle. [[PRECEDENT]. Thus, the liability of respondent no.4 is joint and several to that of respondent no.1 and 2.
[ENTITY] (IN [CASE NUMBER])
38.In view of the above, the claim petition stands allowed. The respondent no.3 is liable to pay compensation of Rs.88,556/ to the petitioner [ENTITY] within one month. Relying upon the [CASE NUMBER] judgment of Hon'ble Apex Court cited in [CASE NUMBER], I direct that respondent no.3/insurance company shall also pay interest @ 12% per annum on the total compensation amount from the date of petition till realization to the petitioner [ENTITY].
[ENTITY] (IN MAC NO. [CASE NUMBER])
39.The respondent no.3 is liable to pay the compensation of Rs. 3,75,000/ alongwith interest @ 12% per annum on the total amount from the date of petition till realization to the petitioners.
40.Out of total amount of award, Rs.1,00,000/ shall be released to the petitioner no.1 Smt. [ENTITY] (mother of deceased) forthwith.
41.The remaining amount of Award shall be kept in two equal FDRs for a period of two years with release of periodical interest.
42.The FDRs shall not be encashed before their maturity date without leave of this court.
43.The HDFC Ergo General Insurance Company is hereby directed to deposit the award amount with upto date interest in Oriental Bank of Commerce branch F21, Preet Vihar Main Vikas Marg, Delhi01 in the name of the claimants within 30 days from the date of award under the intimation to this court and bank would keep this amount in an account in the name of Judge [ENTITY] (East).
44.In case, even after passage of 90 days from today, the Insurance [CASE NUMBER] Page : 16/17 Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of [PRECEDENT], this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/.
List for reporting compliance on 06.09.2014.
Announced in the open court Dated : 24th July, 2014 (MS. [ENTITY]) PRESIDING OFFICER [ENTITY] (EAST) KARKARDOOMA COURTS : DELHI. [CASE NUMBER] [CASE NUMBER] 24.07.2014 Present : Ld. Counsel for parties.
Vide separate common judgment announced in the open court today, both the claim petitions stand allowed.
In [CASE NUMBER], the respondent no.3 is liable to pay compensation of Rs.88,556/ to the petitioner [ENTITY] within one month. Relying upon the judgment of Hon'ble Apex Court cited in [CASE NUMBER], I direct that respondent no.3/insurance company shall also pay interest @ 12% per annum on the total compensation amount from the date of petition till realization to the petitioner [ENTITY].
In [CASE NUMBER], the respondent no.3 is liable to pay the compensation of Rs.3,75,000/ alongwith interest @ 12% per annum on the total amount from the date of petition till realization to the petitioners.
Out of total amount of award, Rs.1,00,000/ shall be released to the petitioner no.1 Smt. [ENTITY] (mother of deceased) forthwith.
The remaining amount of Award shall be kept in two equal FDRs for a period of two years with release of periodical interest.
The FDRs shall not be encashed before their maturity date without leave of this court.
The HDFC Ergo General Insurance Company is hereby directed to deposit the award amount with upto date interest in Oriental Bank of Commerce branch F21, Preet Vihar Main Vikas Marg, Delhi01 in the name of the claimants within 30 days from the date of award under the intimation to this court and bank would keep this amount in an account in the name of Judge [ENTITY] (East).
In case, even after passage of 90 days from today, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the [CASE NUMBER] Hon'ble High Court of Delhi in the case of [PRECEDENT], this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/.
List for reporting compliance on 06.09.2014.
(MS. [ENTITY]) PO [ENTITY] (EAST)/KKD./DELHI/24.07.2014 [CASE NUMBER]