1 IN THE COURT OF SH. HARISH DUDANI JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI SUIT NO.:692/11/2011 DATE OF INSTITUTION: 1.9.2011 1. Smt. [ENTITY] W/o Late Sh. [ENTITY] 2. [ENTITY] S/o Late Sh. [ENTITY] 3. [ENTITY] S/o Late Sh. [ENTITY] All R/o Village & PO Charawari ToBelthara Road,Distt.Ballia,UP. Petitioners Versus 1. Sh. [ENTITY] S/o Late Sh. Ram Singh R/o 18/27, East Patel Nagar New Delhi110008. 2. Sh. [ENTITY] S/o Sh. [ENTITY] R/o 875, Joshi Road Faiz Road, Karol Bagh New Delhi110005. 3. ICICI Lombard General Insurance Company Limited Spare No.315,3 Floor rd Aggarwal City Mall Pitampura,Delhi. Respondents
Final Arguments heard on : 22.04.2014 Award reserved for : 05.05.2014 Date of Award : 05.05.2014 AWARD
1. Vide this judgment cum award I proceed to decide the petition filed by petitioner U/[SECTION] and [SECTION] of [ACT], as amended up to date (hereinafter referred to as the Act) for grant of compensation for death in a road accident.
2. Briefly stated the facts giving rise to the petition are that on 16.7.2011 Sh.[ENTITY] was going on motorcycle no. 03A054562 and at about 7.35 AM he reached opposite main gate of 2A HQ Signal Regiment near Budha Garden, New Delhi and in the meantime the car bearing no.DL4CAD8484 being driven by respondent no.1 in a rash and negligent manner at a high speed came from Dhaula Kuan side and hit the motorcycle of Sh. [ENTITY] as a result of impact of car Sh.[ENTITY] fell down and was dragged about 2030 feet away with the motorcycle. Sh. [ENTITY] was taken to Army RR hospital, Delhi Cantt. where he was declared brought dead. It is stated that case vide FIR no.76/11, under [SECTION] [ACT] was registered at PS Chanakya Puri.
3. It is stated that Sh. [ENTITY] was 37 years of age at the time of accident and he was employed as Local Havaldar in Indian Army and was earning a sum of Rs.30,000/approximately per month. It is further stated that accident was caused due to rash and negligent driving of respondent no.1, respondent no.2 is the registered owner and respondent no.3 is the insurer as such all the respondents are jointly and severally liable to pay compensation. It is prayed that Rs.75,00,000/(Rs. Seventy Five Lacs) be awarded as compensation alongwith interest from the date of filing of petition till realization.
4. Respondent no. 1 and 2 have filed written statement and have contested the petition. It is stated that the present petition filed by the petitioners is not maintainable as the deceased himself was rash, negligent and careless while driving his motorcycle no.03 A 054562 while coming from the Ridge Road(Shankar Road) side and all of a sudden took right turn from the cut opposite the main gate of 2A HQ Signal Regiment and in the process hit against car being driven by respondent no.1 who tried his best to stop the vehicle which skidded on the road due to sudden applying of the brakes but his effort was not fruitful and these facts were corroborated by the extent of damages on the car no.DL4CAD8484. It is stated that the respondent no.1 was holding a valid and effective driving license at the relevant time and the car no.DL4CAD8484 was duly insured with respondent no.3 insurance company and in case the petitioners succeed in their petition the extent of liability of compensation will be borne by the respondent no.3 only. Other averments made on merits are denied.
5. Respondent no. 3 has filed written statement and has contested the petition. It is stated that the present claim petition is bad for non joinder of necessary parties as the owner and insurer of the vehicle no.03 A 054562(Bullet Royal Enfield) are necessary parties since accident if any has occurred on account of sole negligence on the part of the deceased who was driving the said Bullet motorcycle at a very fast speed, in a rash, negligent manner, without following the rules and regulation of traffic and in violation of provisions of [ACT] and thereby caused the alleged accident. Therefore, the respondent no.3 is not liable to pay any compensation to the petitioners. Alternatively it is stated that the deceased was guilty of contributory negligence. It is stated that vehicle no.DL4CAD8484 was insured with respondent no.3 vide private car policy no.3001/65418435/00/000 issued for the period from 30.6.2011 to 29.5.2012. Other averments on merit are denied.
6. From the pleadings of parties following issues were framed by my Ld. Predecessor on 9.1.2012:
1. Whether the deceased sustained injuries in the accident which occurred on 16.7.2011 at about 7.35 A. M. at Ridge Road, Opp.Main Gate 2, AHQ, Signal Regiment, Near Buddha Garden, Chanakaya Puri, New Delhi caused by rash and negligent driving of vehicle no. DL4CAD8484 driven by respondent no.
1, owned by respondent no. 2 and insured with respondent no. 3? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3.Relief.
7. In support of their claim petitioners examined Smt. [ENTITY], wife of deceased/petitioner no.1 as PW1. She tendered her evidence in examination in chief by affidavit Ex.PW1/A.
8. Petitioners examined [ENTITY], True Company to Army Headquarter, Kerap 56, APO, Delhi as PW2. PW2 proved the salary certificate of deceased as Ex. PW2/1.
9. Respondent no. 3 examined respondent no.1 Sh. [ENTITY] s/o Late Sh[ENTITY] R/o 18/27, East Patel Nagar, New Delhi110008 as R3W1. R3W1 stated that on 16.7.2011 he was going from Budha Jayanti Park to East Patel Nagar on his car bearing registration no.DL4CAD8484 which was being driven at normal speed. R3W1 stated that the road on which he was driving his car had blind curve on both sides of which there were trees and there was a cut on the said road which connects the road in front of Budha Jayanti Park and Rajender Nagar and while he was going straight one motorcyclist came at very high speed and hit on the right side centre of his car. R3W1 stated that the accident took place due to negligence of driver of motorcycle.
10. I have heard the Ld. counsel for the parties and perused the record. My findings on specific issues are as under:
11.As the petition has been filed U/[SECTION] [ACT] it was incumbent upon the petitioners to prove that the accident was caused due to rash and negligent driving of driver of vehicle no. DL4CAD8484.
12.To determine the negligence of driver of offending vehicle it has been held in [PRECEDENT] as follows:
"The last contention of the appellant insurance company is that the respondentsclaimants 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]). 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 [SECTION] , [ACT] 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 [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."
13. The case of the petitioners is that on 16.7.2011 Sh. [ENTITY] was going on motorcycle no. 03A054562 and at about 7.35 AM he reached opposite main gate of 2A HQ Signal Regiment near Budha Garden, New Delhi and in the meantime the car bearing no.DL4CAD8484 being driven by respondent no.1 in a rash and negligent manner at a high speed came from Dhaula Kuan side and hit the motorcycle of Sh. [ENTITY] as a result of impact of car Sh. [ENTITY] fell down and was dragged about 2030 feet away with the motorcycle. Sh. [ENTITY] was taken to Army RR hospital, Delhi Cantt. where he was declared brought dead. It is stated that case vide FIR no.76/11, under [SECTION] [ACT] was registered at PS Chanakya Puri. Petitioner no.1 appeared in witness box as PW1 and adduced evidence by way of affidavit Ex.PW1/A. In her affidavit PW1/petitioner no.1 has reiterated the manner of accident as stated in the claim petition. In para 2 of PO of written statement respondents no.1 and 2 have stated that the deceased was himself rash, negligent and careless while driving his motorcycle no. 03A054562 and deceased all of a sudden took right turn from the cut opposite the main gate of 2A HQ Signal Regiment and in the process hit against the car being driven by the respondent no.1 who tried his best to stop the vehicle which skidded on the road due to sudden applying of the brakes but his effort was not fruitful. Respondent no.1 was examined by respondent no.3 as R3W1 and in his examination R3W1 stated that on 16.7.2011 he was going from Budha Jayanti Park to East Patel Nagar in his car bearing no.DL4CAD8484 and the road on which he was driving his car has a blind curve on both sides of which there are trees and there is a cut on the said road which connects the road in front of Budha Jayanti Park and Rajender Nagar and while he was going straight one motorcyclist came at very high speed and hit on the right side centre of his car and the accident took place due to negligence of driver of motorcycle. Respondent no.3 admitted in the crossexamination that the case vide FIR No. 76/11, under [SECTION] [ACT] was registered against him at PS Chanakya Puri and the trial in respect of the said case is pending in the court of Ld.MM. R3W1 further stated that he has not made any complaint to any higher authority either in the police or in the court that he has been falsely implicated in case FIR no.76/11, under [SECTION] [ACT], PS Chanakya Puri. Police has filed Accident Information Report(AIR) in this case and alongwith AIR police has filed copy of FIR no.76/11, under [SECTION] [ACT], PS Chanakya Puri, copy of final report under [SECTION] [ACT], copy of site plan, copy of seizure memo of motorcycle no.03A054562, copy of seizure memo of car no. DL4CAD8484, copy of seizure memo of blood, hair and skin of deceased from the spot, copy of seizure memo of RC and insurance of offending vehicle, copy of seizure memo of driving licence of respondent no.1, copy of MLC of deceased prepared at Army Hospital R&R, Delhi Cantt. Copy of postmortem report of deceased, copy of insurance policy of offending vehicle, copy of arrest memo of respondent no.1, copy of mechanical inspection report of motorcycle no.03A054562 and mechanical inspection report of car no. DL4CAD8484. As per mechanical inspection report of motorcycle no.03A054562 it had fresh damages i.e. front wheel rim/tyre and tube/front mud guard damaged, front 2 shockers assembly pressed/damaged, front head light assembly/front indicators/meter assembly damaged, handle bar pressed/damaged, left guard pressed/damaged/left and right side covers damaged, rear 2 shockers assembly/rear wheel rim assembly damaged, alluminium clutch cover broken/ brake peddle bend, chasis assembly pressed and damaged, seat damaged, back light damaged, rear 2 indicators damaged, brakes damaged. As per mechanical inspection report of vehicle no. DL4CAD8484 it had fresh damages i.e. front bumper damaged/uprooted up/ front cross pressed, front 2 head lights damaged, front bonnet pressed/ front members pressed, left and right front fender and aprons pressed/damaged, left front door dented/pressed/ front side mirror damaged, front suspension assembly damaged, front radiator and AC assembly pressed/damaged, front wind screen glass broken/dash board damaged, roof dented/pressed front portion. As per charge sheet respondent no.1 has been charge sheeted for the offences under [SECTION] [ACT]. Respondents no.1 and 2 have pleaded that the accident took place due to negligence of petitioner, however, the same has not been corroborated by any independent evidence. Thus in view of testimony of PW1 and documents on record the negligence of driver of offending vehicle i.e. respondent no. 1 has been prima facie proved. Issue no. 1 is accordingly decided in favour of petitioners against the respondents.
ISSUE NO.2
14.As issue no.1 is decided in favour of the petitioners, they are entitled to compensation.
COMPENSATION
15.The present petition has been filed by petitioner no. 1, widow, petitioners no. 2 and 3 minor children of deceased.
16.It is stated in the claim petition that the deceased Sh. [ENTITY] was 37 years of age at the time of accident. In order to prove the age of deceased the petitioners have proved the service record of deceased as per which the date of birth of deceased is 06.08.1974. Hence the deceased was around 36 years and 11 months of age at the time of accident and the appropriate multiplier applicable according to the age of deceased in view of judgment of [PRECEDENT] is of 15.
17. It is stated that the deceased Sh. [ENTITY] was working as [ENTITY] in Indian Army. In order to prove the employment and income of deceased the petitioners have examined PW2 [ENTITY], True Company to Army Headquarter, Kerap 56, APO, Delhi. The pay slip of the deceased for the month of June 2011 has been filed on record which is Ex. PW1/2 as per which the pay of deceased is consisted of Rs.9120/ Basic Pay, Rs.2400/ Grade Pay, Rs.2000/ MS Pay, Rs.200/ CL Pay, Rs. 1600/ TPTL, Rs. 7711/ DA, Rs. 75/ PMHA, Rs.290/ LRA. It is to be noted that the transport allowance is to be paid for attending duties and the same will not form part of wages for computation of compensation. The petitioners have also relied on certificate Ex.PW1/3 issued by Lt.Col/Maj/Capt, Acct Officer, 2 Coy. 2 Army HQ Sig Regt as per which the deceased was entitled to Rs.2500/ per month as Children Education Allowance and Rs.2000/ per month as compensation in lieu of Quarters(Akin to HRA). The education allowance is in the form of reimbursement and is granted on depositing proof of expenditure on education of children till the children turn 18 years of age and the said reimbursement is taxable for the purposes of income tax. Hence, the same can not be considered for calculating the income of deceased for the purpose of compensation. Hence the total income of deceased for computation of compensation shall be taken as Rs.23,796/ per month.
18.As per decision in [PRECEDENT] (supra) there is an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the age of deceased is below 40 years. After addition of 50% the income of the deceased comes to (Rs.23,796/+50% of Rs23,796/)=Rs.35,694/per month.
19. The claim petition was filed by petitioners and Smt. [ENTITY] mother of deceased who expired during pendency of proceedings on 10.3.2012 and her name was deleted from array of parties vide order dated 25.3.2014. Hence at the time of accident the deceased was survived by 4 dependents. In [PRECEDENT] (supra) it has been held that:
"30.Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in [ENTITY], the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be onethird(1/3rd) where the number of dependent family members is 2 to 3, onefourth(1/4th) where the number of dependent family members is 4 to 6, and onefifth(1/5th) where the number of dependent family members exceeds six."
20. Hence in view of above judgment of [PRECEDENT] (supra) 1/4th is to be deducted for personal and living expenses of the deceased. After deduction of 1/4th out of Rs.35,694/, the contribution of the deceased to his family would have been Rs.26,770.5/ which may be rounded as of Rs.26,771/ per month and applying the multiplier of 15, the total loss of dependency is computed to be as Rs.26771x12x15=Rs.48,18,780/. In [ENTITY] and others [ENTITY] and others, 2013 ACJ [SECTION]3, Hon'ble Supreme Court has held that loss of consortium should be Rs.1,00,000/ and funeral expenses should be Rs.25,000/. Petitioners are also awarded Rs.1,00,000/ for loss of care and guidance to minor children in terms of decision in [ENTITY] and others [ENTITY] and others(supra).
The total compensation is determined as under:
Loss of dependency : Rs. 48,18,780/ Funeral Expenses : Rs. 25,000/ Loss of care and guidance to minor children : Rs. 1,00,000/ Loss of consortium : Rs. 1,00,000/ TOTAL : Rs. 50,43,780/ RELIEF
21.The contention of counsel for respondent no.3 is that the amount of compensation is liable to be reduced on account of contributory negligence of deceased. In order to prove its contention that the deceased contributed in causing the accident respondent no.3 has examined respondent no.1 as R3W1. R3W1 admitted that the accident was caused by car no. DL4CAD8484 which was being driven by him, however he has pleaded that the accident took place as the road on which he was driving had a blind curve on both sides of which there were trees and there was a cut on the said road which connects the road in front of Budha Jayanti Park and Rajender Nagar and while he was going straight one motorcyclist came at very high speed and hit on the right side centre of his car. Although R3W1 has pleaded that the motorcyclist has hit the right side of his car, however the mechanical inspection report of car and motorcycle do not substantiate the version of respondent no.1 because as per mechanical inspection report of car it had fresh damages i.e. front bumper damaged/uprooted up, front head lights damaged, front bonnet pressed/ front main doors pressed, left and right front fender and aprons pressed/damaged, left front door dented/pressed/ front side mirror damaged, front suspension assembly damaged, front radiator and AC assembly pressed/damaged, front wind screen glass broken/dash board damaged. It is to be noted that as per site plan of the spot of accident filed alongwith AIR there are skidding marks of car for approximately about 35 mtrs before it collided with the motorcycle and thereafter car skidded for about 23 mtrs after hitting the motorcycle which indicates that the car was being driven at a high speed and the car driver could not stop his car after noticing the motorcyclist from a distance of more than 35 mtrs and the high speed of the car is again indicated by the fact that even after hitting the motorcycle the car finally stopped at the distance of about 23 mtrs. It is to be noted that in order to prove its contention that the motorcyclist was negligent in causing the accident, respondent no.3 has examined driver of car i.e. respondent no.1 and it is quite natural that in order to shift the burden from him respondent no.1 will web a story which exculpates him from the negligent aspect of causing accident. Respondents have not examined any independent witness in order to corroborate their contention that Sh. [ENTITY] contributed in causing the accident.
22.The petitioners are thus awarded Rs.50,43,780/(Rs.Fifty Lacs Forty Three Thousand Seven Hundred Eighty only) with interest at the rate of 7.5% per annum in terms of decision in [ENTITY] and others [ENTITY] and others(supra) from the date of filing of petition till its realisation including, interim award, if any already passed in favour of the petitioner and against the respondents. The liability of all the respondents being joint and several. Petitioner no.1, widow of deceased shall have a share of 60% in the awarded amount, petitioners no. 2 and 3 shall have a share of 20% each.
23.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 [PRECEDENT]. In view of the directions contained in the above judgments the award amount is to be disbursed as follows:
24. 50% of share of petitioners no. 2 and 3 shall be kept in the form of [ENTITY] in a nationalised bank till they attain age of 18 years and remaining 50% of their share shall remain in [ENTITY] till they attain age of 21 years. 10% of the share of petitioners no.1 shall be released to her by transferring it into her savings account and remaining amount be kept in [ENTITY] in her name in UCO Bank, Patiala House court Branch, New Delhi in 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.
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.
9. Fixed deposit in respect of 10% for a period of nine years.
25.The cheque be deposited in UCO Bank, Patiala House Court Branch in the name of UCO Bank, A/c Smt. [ENTITY], A/c Master [ENTITY], A/c Master [ENTITY].
26.The interest on the fixed deposits shall be paid monthly by automatic credit in the saving accounts of the claimants/beneficiary.
27.Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimants along with the photocopy of the [ENTITY]. Upon the expiry of period of [ENTITY] the bank shall automatically credit the maturity amount in the saving account of beneficiary.
28.The original fixed deposit receipt shall be handed over to the claimants at the end of the fixed deposit period and shall automatically credit the maturity amount in the savings account of the beneficiary.
29.No cheque book shall be issued to the claimants without permission of the court. No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the court.
30.Withdrawal from the aforesaid accounts shall be permitted to the beneficiary after due verification and the Bank shall issue photo identity card to the beneficiary to facilitate identity.
31.Bank shall transfer Savings Account to any other Bank/Branch according to their convenience.
32.The beneficiary shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
[ENTITY] to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. [ENTITY] is directed to note the particulars of the award amount in the register today itself.
34.The insurer/ respondent no. 3 shall deposit the award amount directly in bank account of the claimant at UCO Bank,Patiala House Court,New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
35.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 [ENTITY] 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 [ENTITY] 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.
36.The insurer shall deposit the award amount alongwith 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 alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 21.07.2014.
APPORTIONMENT OF LIABILITY:
37. Respondent no. 3 has not proved any violation of terms and conditions of policy. Thus respondent no. 1 being the driver, respondent no.2 being the owner and respondent no.3 being the insurer are held jointly and severally liable. Respondent No. 3 being the insurer is directed to deposit the award amount within 30 days with interest @ 7.5% per annum from the date of filing of petition till its realisation. In case of any delay, it is liable to pay interest @ 12% per annum for the period of delay. [ENTITY] to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. [ENTITY] is directed to note the particulars of the award amount in the register today itself. An attested copy of award be given to the parties(free of cost). File be consigned to Record Room.
Announced in the open court ([ENTITY]) on 05.05.2014 Judge: MACT1 : New Delhi