IN THE COURT OF MS. REKHA RANI : JUDGE : MACT : DELHI MACT No. : 35/07 UNIQUE ID NO. :[CASE NUMBER] 1 Smt. [ENTITY] ( widow of deceased) 2. [ENTITY] ( married daughter of deceased) 3. [ENTITY] ( Married Son of deceased) 4. [ENTITY] ( daughter of deceased) 5. [ENTITY] (son of deceased) 6. [ENTITY] ( Since died) All R/o B82, Patel NagarIInd Ghaziabad, UP. Petitioners Versus 1 Sh. [ENTITY] S/o Sh. Tej Singh R/o Village Gadia, Post Lallu Pur, Sasarpur Distt. Main Puri, UP Driver 2 [ENTITY] S/o Krishan Gopal Chopra R/o B140A, Vishwas Park, Uttam Nagar, Delhi59 Owner 3 [ENTITY] th 14H, Hansalya Building, 14 Floor, 15, Barakhamba Road, Cannaught Place, New Delhi Ins. Co. Respondents MACT 35/07 Jag Roshni Vs. [ENTITY] 1/19 DATE OF INSTITUTION : 25.05.2007 DATE OF RESERVING ORDER : 02.07.2013 DATE OF PRONOUNCEMENT : 09.07.2013 A W A R D 1. A petition under [SECTION] read with [SECTION] of [ACT] (in short the Act) was filed claiming compensation of Rs. 50 lacs with interest @ 18 p.a on account of road traffic accident which occurred on 09.04.07 at about 10:15 pm at Nand Gram TPoint Main Road which resulted in death of [ENTITY] (in short deceased). Petitioner no. 1 his widow, Petitioner no. 2 and 4 his daughters , Petitioner no. 3 and 5 his sons and petitioner no. 6 his father are the claimants. Facts pleaded in the petitioner are that:
2. On 09.04.07 at about 10:15 pm the deceased was walking near his house at Nand Gram TPoint Main Road when a Toyota Qualis bearing no. DL8CG5160 (in short offending vehicle) came from the side of Haridwar proceedings towards Delhi, which was being driven rashly and negligently hit the deceased who received grievous injuries. He was removed to GTB hospital from the place of accident and thereafter shifted to Pashoda Hospital Ghaziabad and thereafter shifted to GB Pant Hospital where he died on 20.04.07 due to injuries received in the accident. MACT 35/07 Jag Roshni Vs. [ENTITY] 2/19 He was 53 years old and was working as Manager SBI and earning Rs. 35,500/ per month. Had he not died he would have been promoted and earned Rs. 50,000/ per month. Petitioners have suffered immense pain and torture. Their loss cannot be compensated in terms of money. The offending vehicle was being driven by [ENTITY] (in short R1) and R1 was working under the control of [ENTITY] (in short R2) and it was insured with Reliance General Insurance co. Ltd. (in short R3) all the respondents are liable to pay compensation jointly and severally.
3. R1 contested the case vide his written statement wherein it is pleaded that accident was caused due to negligence and carelessness on the part of deceased as he suddenly came infront of the offending vehicle on road and R1 tried his level best to save the petitioner. It is further stated that R1 was driving his vehicle very carefully. It is submitted that accident took place on the part of deceased as he was crossing the road carelessly. It is further stated that R1 had valid and effective driving licence at the time of accident and as such R1 is not liable to pay any compensation. It is denied that deceased was earning Rs. 35,000/ per month.
4. R2 also filed written statement. It is stated that MACT 35/07 Jag Roshni Vs. [ENTITY] 3/19 offending vehicle was insured with R3 and that R1 was having valid and effective driving license at the time of accident. It is denied that accident took place on account of rash and negligent driving of R1. It is pleaded that R1 was driving the vehicle very carefully and slowly.
5. R3 in its written statement admitted that offending vehicle was insured in the name of R2 vide policy no. 1301362311201098 valid from 22.12.06 to 21.12.07. It is denied that offending vehicle was being driven by R1 at a very fast speed.
6. Following issues were framed by my Ld. Predecessor on 08.05.08 :
1. Whether the deceased had sustained fatal injuries on 09.04.07 at about 10:15 pm at Nand Gram Tiraha Main Road under the jurisdiction of PS Singhani Gate, Ghaziabad due to rash and negligent driving of respondent no. 1 while driving vehicle no. DL8CG5160?
2. Whether petitioners are entitled to compensation, if so, to what amount and from whom?
3. Relief.
Petitioner no. 1 was examined as PW1. Kanwar Pal eye MACT 35/07 Jag Roshni Vs. [ENTITY] 4/19 witness was examined as PW2. Sh. [ENTITY], Assistant Manager, SBI Kavi Nagar was examined as PW3. I have heard sh. [ENTITY] counsel for petitioner and Sh. [ENTITY] counsel for insurance co.
7. ISSUE No.1 QUA [ENTITY] PW2 deposed that on 09.04.07 at about 10:15 pm he along with deceased were walking after dinner at Nand Gram T Point main road. He further deposed that while deceased was crossing the road to go to his house offending vehicle came from Haridwar side at a very fast speed driven by R1 rashly and negligently which hit the deceased. He further deposed that he found a diary in the pocket of the deceased and he informed the family members of the deceased about the accident. The witness was not crossexamined.
8. Petitioners have placed on record certified copies of criminal case. Report under [SECTION] [ACT] shows that R1 was prosecuted for having caused the said accident for the offences punishable under [SECTION] [ACT].
9. Postmortem examination report of deceased shows that deceased died due to injuries sustained in road accident as is clear MACT 35/07 Jag Roshni Vs. [ENTITY] 5/19 from his Postmortem examination report which reads "Death is due to cerebral damage consequent upon blunt force/surface trauma to the head. All injuries are antemortem and could be caused in a road traffic accident"
'Alleged history sustaining injuries in a road traffic accident. He was hit by a vehicle while he was crossing the road on 09.04.07 at about 10:30 pm in Ghaziabad. He was taken to GTB Hospital from where he was brought to Pashoda hospital. He was shifted to GB Pant Hospital on 16.04.07. He expired on 20.04.07 at 8:30 pm."
10. It is true that petitioners have placed on record only photocopy of [CASE NUMBER] of GTB hospital where the deceased was admitted on 09.04.07 i.e. the date of accident. It is also true that record of treatment of deceased at Pashoda Hospital is not proved. Treatment of deceased at GTB hospital is also not proved. At the same time the opinion of doctor conducting postmortem examination is quite relevant which is reproduced above.
11. It is also relevant to note that R1 himself did not dispute the accident.
MACT 35/07 Jag Roshni Vs. [ENTITY] 6/19 He stated in the para 4 of the written statement "the said accident was caused due to own carelessness and negligence on the part of the deceased Shri [ENTITY], because he suddenly came in front of the vehicle on the road and respondent no. 1 tried to his level best to save the petitioner. It is submitted that the respondent no. 1 was driven his vehicle very carefully and by obeying all rules and regulations of the Traffic rules. It is pertinent to mention here that there is no crossing lane to cross the road".
12. It has to be borne in mind that [ACT] does not stipulate holding a trial for petition preferred under [SECTION] of the Act. Under [SECTION] of the Act, a Claims Tribunal holds an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. In [PRECEDENT]. Hon'ble Apex Court held " that tribunal exercising quasijudicial functions are not courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can unlike courts, obtain all information for the points under the enquiry from all sources and through all MACT 35/07 Jag Roshni Vs. [ENTITY] 7/19 channels, without being fettered by rules and procedure, which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity depend on the facts and circumstances of each case but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts"
13. In [PRECEDENT], Supreme Court held that " In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
14. In [PRECEDENT]. Decided on 20th December, 2007. Hon'ble MACT 35/07 Jag Roshni Vs. [ENTITY] 8/19 Delhi High Court observed 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 Supreme Court in [PRECEDENT]. On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced (1) certified copy of the criminal record of criminal case in FIR No. 955/2001, pertaining to involvement of the 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 the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under [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."
MACT 35/07 Jag Roshni Vs. [ENTITY] 9/19
15. Keeping in view of the aforesaid judgments and the fact that R1 did not deny that deceased had come in front of his vehicle and he tried his level best to save him coupled with opinion of doctor who conducted postmortem examination on the body of the deceased, the fact that R1 was prosecuted by the investigating officer for offences punishable under [SECTION] A [ACT] for having caused the said accident and further that R1 himself did not appear in the witness box to explain how negligence and carelessness could be attributed to the deceased for causing the said accident, preponderance of probability is that [ENTITY] died due to rash and negligent driving of the offending vehicle by R1.
This issue is accordingly decided in favour of petitioners and against the respondents.
16. Petitioners examined Sh. [ENTITY] Assistant Manager, SBI as PW3 who proved the salary certificate of deceased as Ex. PW3/1. As per Ex. PW3/1, total salary of deceased was Rs. 32,427/ and after deduction of income tax of Rs. 6000/ , it comes to Rs. 26,427/. Therefore, loss of monthly income of deceased was Rs. 26,427/.
MACT 35/07 Jag Roshni Vs. [ENTITY] 10/19
17. In [ENTITY] & Others v. Rajbir Singh & Others 2013(6) SCALE 563, deceased was around 33 years of age at the time of accident. He was survived by his widow and minor children. He was working as a clerk in a Government School. Claims Tribunal awarded total compensation of Rs. 8,96,500/. On appeal Hon'ble High Court enhanced the total compensation to Rs. 10,17,000/. On further appeal to Hon'ble Apex Court total compensation was enhanced to Rs. 22,81,320/. Hon'ble Apex Court observed that compensation under [SECTION] has to be "just fair and equitable to make good the loss suffered as a result of the wrong as far as money can do".
18. Hon'ble Apex Court referred to [ENTITY] v. National Insurance Company Ltd. & Others 2012(4) SCALE 559 in which it was observed that even in absence of any evidence as to future prospects an increase of 30% in the income has to be provided where the victim had fixed income or was a self employed person.
Relevant part of the order is reproduced below "18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of [ENTITY]'s judgment, the Court had intended to lay down an absolute rule that there will be no MACT 35/07 Jag Roshni Vs. [ENTITY] 11/19 addition in the income of a person who is selfemployed or who is paid fixed wages.
Rather, it would be reasonable to say that a person who is selfemployed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."
19. To make compensation payable to LRs of self employed or engaged on fixed wages fair, reasonable and equitable. Hon'ble Apex Court observed
11. Since, the Court in [ENTITY]'s case (supra) actually intended to follow the principle in the case of salaried persons as laid in [ENTITY]'s case (supra) and to make it applicable also to the self employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the MACT 35/07 Jag Roshni Vs. [ENTITY] 12/19 actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.
18. In [ENTITY]'s case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter".
20. Since the deceased was above 50 years, there has to be an addition of 15% as per [ENTITY] & Others (supra)
21. Deduction Towards Personal and Living Expenses In her statement made on 16.04.08 before my Ld. Predecessor widow of deceased stated that [ENTITY] aged about 31 years was married daughter of deceased and [ENTITY] aged 29 years married son of deceased. In her statement made on 17.11.09 she stated that [ENTITY] is financially independent earning Rs. 50006000/ per month. [ENTITY], married daughter and MACT 35/07 Jag Roshni Vs. [ENTITY] 13/19 [ENTITY], son of deceased were not financially dependent upon him. There were 4 dependents upon the deceased on the date of accident. As per [ENTITY] (Supra), 1/4th amount has to be deducted towards personal and living expenses.
22. Multiplier In the petition the age of deceased is mentioned as 53 years. In post mortem report his age is mentioned as 56 years. Photocopy of ration card shows the age of deceased as 55 years. So there are different versions regarding age of deceased. As per [PRECEDENT], age favourable to claimant has to be considered for grant of compensation the Act being social welfare legislation. Accordingly multiplier of 11 multiplier of 11 is applicable as per [ENTITY] Vs DTC (200) 6 SCC 121
23. Calculation Salary Rs.26,427/ Addition of 15% Rs.26,427/+3964/= 30,391/ th 1/4 deduction towards personal and living expensesRs.30,3917597=22,794/ The loss of dependency thus comes to Rs.30,08,808/ (Rs.22,794X12X11) MACT 35/07 Jag Roshni Vs. [ENTITY] 14/19
24. Regarding compensation payable on account of loss of consortium Hon'ble Supreme Court in [ENTITY] & Ors (Supra) observed that "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 [ENTITY]). 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 expenses. It may be noted that the sum of Rs. 2500/ 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 [ENTITY]'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 damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of nonpecuniary damage for loss of consortium is MACT 35/07 Jag Roshni Vs. [ENTITY] 15/19 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."
In view of the above Rs. 1 lac is given for loss of consortium.
25. Regarding compensation payable towards funeral expenses it was further observed in [ENTITY] & Ors (Supra) "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 '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 MACT 35/07 Jag Roshni Vs. [ENTITY] 16/19 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 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/."
26. In view of the above Rs. 25,000/ is granted towards funeral expenses. Rs. 10,000/ is granted towards loss of estate.
27. After deduction of interim award of Rs. 50,000/ over all compensation thus comes to Rs.30,93,808/ (31,43,808/50,000/)
28. R3 is, accordingly directed to deposit with this Tribunal within 30 days from today the awarded amount of Rs. 30,93,808/ with interest at the rate of 7.5 % per annum from the date of filing of claim petition till notice of deposit to be served on LR's of deceased by R3.
29. I have heard the widow of deceased regarding the financial needs of the LR's of deceased. In view of the submission and in view of the judgment in General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) MACT 35/07 Jag Roshni Vs. [ENTITY] 17/19 SC, 1631 for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, and being susceptible to exploitation, following arrangements are hereby ordered:
30. Rs. 2 lac each be given to petitioner no.4 and 5. Rs. 1 lac be given to petitioner no. 2 and same be released to her. Rs. 50,000/ be given to petitioner no.3 and be released to him. Remaining amount of Rs. 25,43,808/ be given to petitioner no.1 widow of deceased.
31. Rs. 50,000/ each be released to petitioner no. 4 and 5 out of their share. Remaining Rs. 1,50,000/ each be kept in FDRs in their names for a period of two years. Rs. 5,43,808/ be released to petitioner no.1 widow of deceased out of her share. Remaining Rs.20,00,000/ be kept in FDRs in her name in following manners.
i) Rs. 5 lacs in Fixed deposit for a period of one years.
ii) Rs. 5 lacs in Fixed deposit for a period of two years.
iii) Rs. 5 lacs in fixed deposit for a period of three years.
iv) Rs. 5 lacs in fixed deposit for a period of four years.
32. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in their Savings MACT 35/07 Jag Roshni Vs. [ENTITY] 18/19 Account.
33. They shall not have any facility of loan or advance on the FDRs. However, in case of emergent need, they may approach this court for premature encashment of amount.
34. Copy of this order be given to parties for compliance.
35. Petition is disposed of on aforesaid terms. File be consigned to record room.
ANNOUNCED IN THE OPEN JUDGE/MACT:ROHINI COURT ON 09.07.2013 DELHI MACT 35/07 Jag Roshni Vs. [ENTITY] 19/19