IN THE COURT OF MS. [ENTITY] : PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL : SOUTH-EAST DISTRICT : SAKET COURTS : NEW DELHI Suit No.265/2011/2010 Unique Case ID No.02403C0182682010 Fatal (Bachelor) Case : 1 Smt.[ENTITY] Wife of Shri [ENTITY], 2 Shri [ENTITY] Son of Shri Ambika Prasad, Both residents of : Village Hari Shankar Pur, P.O. Jaitpur, District Muzaffarpur, Bihar-843123. Petitioners VERSUS 1 [ENTITY] Son of Fateh Singh (driver) R/o Village Bad, Post Kakuram, District Agra. 2 The [ENTITY] (owner) through its G.M. Under Control, R.M. Agra, Uttar Pradesh Respondents
Date of institution : 08.02.2010 Date of reserving the judgment : 09.04.2013 Date of pronouncement : 17.04.2013 AWARD
This judgment/award shall decide the question of awarding the compensation filed by way of present petition under Section 166 read with Section 140 of [ACT], 1988 as amended up to date (hereinafter referred as Act), arising out of a fatal case.
2 The brief facts relevant for the decision have been detailed by the petitioners, Smt.[ENTITY] and [ENTITY], parents of deceased victim [ENTITY] stating that he met with road traffic accident on 31.12.2009 in front of CRRI near CNG Petrol Pump while his motorcycle, bearing registration No.DL 7S BE-5132 was hit by the speeding UP Roadways Bus, proceeding towards Etawah, bearing registration No.UP 80 VJ-9676 as a result, he suffered fatal injuries and was declared brought dead when removed to AIIMS Trauma Centre.
3 The accident was witnessed by one [ENTITY], at whose instance the FIR in this case was lodged.
4 The petitioners state that the deceased was employed with M/s.Techbooks International Pvt.Ltd. and was earning sufficient income. It is stated that he had bright future prospects and must have scaled many heights in his career, had he remained alive. Compensation of Rs.35,25,216/- is prayed.
5 In the present matter, AIR was filed on 8.2.2010. Consequently, on 25.5.2010, the petition was filed. The respondents were served and caused appearance on 3.2.2011. The replies were received on 24.3.2011 on which date the issues were framed to the following extent :
1 Whether the deceased suffered fatal injuries in the accident which took place on 31.12.2009 at 2335 hrs involving Bus, bearing No.UP 80 VJ-9676 due to rash and negligent driving of R-1 and owned by R-2? OPP 2 Whether the petitioners are liable for compensation? If so, to what amount and against which of the respondents?
3 Relief.
6 The petitioner, [ENTITY], father of the deceased, tendered his examination on 1.6.2011 and was cross-examined whereafter [ENTITY], employee of M/s.Techbooks International Pvt.Ltd. appeared as PW2 whereafter PE was closed. The driver, [ENTITY] appeared as his own witness. He tendered his examination affidavit on 25.10.2012 and was cross- examined whereafter RE was closed. Arguments have been addressed by the learned counsels for the parties. I have heard the same and have carefully perused the record. My findings on the issues are as follows :
ISSUE NO.1 : NEGLIGENCE
7 Since, the present petition is instituted under [SECTION] [ACT], it was incumbent upon the petitioners to establish on record the factum of negligence on the part of erring driver, [ENTITY], in plying the offending UP Roadways Bus, rashly and negligently.
8 The petitioners have heavily relied upon the charge-sheet filed by the IO. The charge-sheet is reflective of the FIR in this case, lodged at the instance of one eye-witness, [ENTITY] son of [ENTITY], R/o 131/5, Vasundhara, Ghaziabad. While on his way to his office at A-28, Mohan Co-operative, Sarita Vihar, Badarpur, New Delhi, the eye-witness saw on Mathura Road when in front of CRRI, near CNG Petrol Pump, he saw UP Roadways Bus, bearing registration No.UP 80 VJ-9676 causing accident due to rash and negligent driving and hitting the motorcycle, bearing registration No.DL 7S BE-5132 due to which the motorcyclist suffered injuries and was removed to the hospital by the CATS Ambulance. The driver of UP Roadways Bus fled from the spot.
9 After the above statement, the IO seized both the vehicles and got their mechanical inspections conducted. The mechanical inspection revealed their involvement in the accident. The driver was subsequently arrested and was released on bail. The site plan has been prepared at the instance of the eye-witness. The MLC and the subsequent post-mortem report of deceased victim [ENTITY] are reflective of the fact of his having met with the fatal end as a result of the injuries suffered by him in the accident. 10 It be observed that the IO has conducted the investigation in this case, his investigation is unchallenged. There is no allegations of bias against him. The driver has moved no protest against his proposed prosecution in this case.
11 The driver while filing his examination affidavit in this case, has averred that the accident occurred due to the negligence of the deceased himself who was plying the motorcycle rashly and rammed it against the front side of his bus. He also disclosed about the presence of one truck on the road and claimed that the motorcycle was overtaking the said truck negligently due to which the accident occurred, however, in the cross-examination, he could not even disclose the number of the truck. He could not disclose that why after the accident, he fled from the spot. He admitted that the prosecution in this case has been proposed against him, though he pleaded acquittal by moving subsequent application under [SECTION] [ACT]. It is to be observed that the decree of proof required in the criminal proceedings are not at par with the present proceedings. The fact of guilt in a criminal case is reached only where the court is satisfied that the prosecution has proved the charge beyond reasonable doubt, however, in the present proceedings, it is sufficient if the material suggest that the accident occurred prima facie due to the involvement of the driver in plying the vehicle rashly. It is pertinent to observe that the degree of proof required for proving the negligence on the part of the driver in the present proceedings, is not as vigorous as is required in proving the guilt of the accused in criminal trial. 12 The intent of the present legislation is benevolent and the entire purpose of the legislation is likely to be defeated if in each case the petitioner is asked to prove beyond reasonable doubt the involvement and negligence on the part of the driver. In reaching to the above opinion, I am guided by the judgment of [PRECEDENT] as well as the case reported as [PRECEDENT], wherein it is held that mere involvement of a vehicle is sufficient to establish and hold the claim petition to be maintainable. It is held that even the certified copy of charge-sheet may not be asked for if the petitioner is able to satisfy on record the involvement of the offending vehicle through the copy of FIR and the mechanical inspection report. The issue hence, is decided in favour of the petitioner and against the respondents. ISSUE NO.2 : COMPENSATION LOSS OF DEPENDENCY 13 Deceased [ENTITY] was employed with Techbooks International Pvt.Ltd., Okhla. The witness, PW2 [ENTITY] has brought the entire record pertaining to his employment as the record suggests that he was continuous and diligent employee of the company. After being offered appointment on 16.2.2004, he received subsequent wage increment. His initial appointment had been at the gross salary of Rs.72,540/- per annum which was steadily enhanced to Rs.1,15,200/- in the year 2006 : Rs.1,25,856/- in the year 2007 and Rs.1,45,524/- in the year 2008 when he had been promoted as Senior Proof Reader vide letter of promotion dated 1.1.2008. He has also received an increment letter on 10.8.2009 as per which his salary went up to Rs. 1,65,372/- per annum. The company also issued the retention bonus vide letter dated 1.2.2009. All the above documents are suggestive that he was a useful resource for the company and had contributed immensely which fact has been acknowledged and appreciated by the employer which has expressed its desire from time to time to retain him in its continuous employment and reward him suitably at all stages to compensate him duly. Thus, his salary is to be assumed as is shown in the documents above. Now, coming to the question of assessment of actual amount which is to be considered for computing the loss of dependency, it be observed that Hon'ble The Apex Court in case titled, [PRECEDENT], held as follows :
"The term 'income' has different connotations for different purposes. A court of law, having regard to the change in societal conditions, must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. Loss caused to the family on death of a near and dear one can hardly be compensated in monetary terms".
14 The law laid down above has been relied upon by the Courts in case titled as [PRECEDENT]. The Hon'ble High Court in [CASE NUMBER], titled [PRECEDENT], decided on 5.12.2011, also relied upon the above. Hence, income of the deceased is to be presumed @ Rs.1,65,372/- per annum.
15 Since, the deceased was in permanent employment and was aged just above 25 years (date of birth being 26.11.1984), he is entitled to future prospects @ 50%, in view of judgment in case titled, [PRECEDENT], passed on 15.4.2009 in [CASE NUMBER], and the income of the deceased is calculated as under :
1,65,372 X 50% = 82,686/-
1,65,372 + 82,686 = 2,48,058/-
Deductions It be observed that at the time of his demise, the deceased was bachelor. Having regard to the above and in view of the judgment of passed in [PRECEDENT] (supra), deductions on account of personal expenses @ 50% are to be made from the dependency. To get the actual dependency of the LRs of the deceased, the following formula is adopted :
2,48,058 divided by 2 = 1,24,029/-
2,48,058 - 1,24,029 = 1,24,029/-
Multiplier As per the copies of educational documents, Ex.PW1/5 placed on record, the date of birth of deceased [ENTITY] was 26.11.1984 according to which he was aged just above 25 years at the time of his death due to the accident on 31.12.2009. Therefore, in view of the law laid down in [PRECEDENT], (supra), the multiplier of '17' for the persons falling in the age group of '26-30' is taken to assess the loss of dependency of the deceased. Hence, total loss of dependency of the LRs of the deceased is assessed as 1,24,029 X 17 = 21,08,493/- The award on account of dependency for the above amount is passed.
FUNERAL EXPENSES
16 The petitioners on record, have not filed any document on account of expenses of funeral of deceased, [ENTITY]. However, it is presumed that an amount of Rs.10,000/- at least may have been spent on the last rites of the deceased. The amount of Rs.10,000/- is hence, awarded on account of funeral expenses.
LOVE & AFFECTION 17 The deceased left behind his parents, namely, Smt.[ENTITY] and Shri [ENTITY]. The Hon'ble High Court in para 8 of the case titled, [PRECEDENT] decided on 19.7.2012, has made following observations regarding awarding love & affection :
"It is urged that the compensation of Rs.1,00,000/- awarded towards loss of love and affection is excessive. Normally, when full compensation towards loss of dependency is granted only a nominal sum is awarded towards loss of love and affection. The trend of the High Court and the Supreme Court is to grant a sum of Rs. 25,000/- under this head. Such a sum was granted by the Supreme Court in [PRECEDENT] and in [PRECEDENT] towards love and affection. However, in a later judgment in [PRECEDENT], in case of a death of bachelor, a compensation of Rs.1,00,000/- was awarded by the Supreme Court. In the circumstances, I am not inclined to interfere in the award of a compensation of Rs. 1,00,000/- towards love and affection."
In view of the observations made above, the petitioners are awarded Rs.50,000/- each, total amounting to Rs.1,00,000/- towards towards love and affection.
LOSS OF ESTATE 18 In view of the circumstances detailed above, the petitioners are also entitled for loss of estate in respect of death of [ENTITY]. Accordingly, an amount of Rs.10,000/- is passed in favour of the petitioners towards loss of estate.
The total compensation is assessed as under :-
Loss of Dependency Rs.21,08,493/- Funeral Expenses Rs. 10,000/- Love & Affection Rs. 1,00,000/- Loss of Estate Rs. 10,000/- Total Rs.22,28,493/-
Hence, the petitioners are awarded a total amount of Rs. 22,28,493/-
RELIEF 19 I hereby award an amount of Rs.22,28,493/- as compensation with interest @ 9% per annum, from the date of filing the present petition, i.e., 8.2.2010 till the date of realisation of the amount, in favour of the petitioners and against the respondents.
20 The driver, R-1 is the principal tort feasor whereas R-2, being the owner, is the joint tort feasor, and is vicariously liable for the acts of the driver.
21 In view of the above discussion, both the respondents are directed to discharge the liability of the award amount within a period of 30 days from today, along with interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay 22 In the judgment of [PRECEDENT], decided on 13.1.2010, which has been affirmed by the Hon'ble Supreme Court in order dated 17.12.2009 in [CASE NUMBER], the Hon'ble High Court have given directions for the protection of the award amount. In view of the aforesaid judgment, it is directed that out of the above awarded amount of Rs. 22,28,493/- (Rupees twenty two lac twenty eight thousand four hundred and ninety three only), 60% of the amount, i.e., Rs.13,37,096/- (Rupees thirteen lac thirty seven thousand and ninety six only) be imparted in favour of mother of deceased, namely, Smt.[ENTITY] whereas the remaining 40% of the amount, i.e., Rs.8,91,397/- (Rupees eight lac ninety one thousand three hundred and ninety seven only) be imparted in favour of father of deceased, namely, Shri [ENTITY].
23 It is also directed that out of the amounts awarded in favour of parents of the deceased, amount of Rs.1,37,096/- (Rupees one lac thirty seven thousand and ninety six only) in favour of mother of deceased and an amount of Rs.1,91,397/- (Rupees one lac ninety one thousand three hundred and ninety seven only) in favour of father of deceased, be released immediately in their favour on realisation.
24 It is further directed that the remaining amounts of Rs. 12,00,000/- (Rupees twelve lac only) and Rs.7,00,000/- (Rupees seven lac only) awarded in favour of parents of the deceased, be kept in State Bank of India by way of FDRs for five years in their accounts, separately. The petitioners may approach Shri [ENTITY], Nodal Officer (Mobile No. 09717044322), State Bank of India or Shri [ENTITY], Branch Manager, State Bank of India, Saket Branch (Mobile No.8800422554), for opening of the accounts after receiving the copy of the award, whereafter the amounts of the petitioners, Smt.[ENTITY] and Shri [ENTITY], shall be released to them as under :
25 20% of the FDRs amount be released to them on the expiry of first year, along with proportionate costs.
26 20% of the FDRs amount be released to them on the expiry of second year, along with proportionate costs.
27 20% of the FDRs amount be released to them on the expiry of third year, along with proportionate costs.
28 20% of the FDRs amount be released to them on the expiry of fourth year, along with proportionate costs.
29 The remaining amount of 20% of the FDRs be released to the petitioners on the expiry of fifth year, along with proportionate costs. The original FDRs be kept with the bank which shall issue photo identity cards to the petitioners to ascertain their identity. The copy of the award shall be given to the parties.
30 It is directed that the FDRs so deposited with the bank, be renewed automatically and the interest thereupon shall be paid monthly, which shall be credited automatically in the saving accounts of the petitioners. The original FDRs be detained by the bank in safe custody. However, the original passbooks shall be issued and given to the petitioners along with the photocopy of the FDRs. The bank is directed to hand over the original FDRs on afflux of time and shall issue the photo identity cards to the petitioners to facilitate the withdrawal after due verification. It is further directed that no cheque books shall be issued to the petitioners without the permission of this court.
31 It is also directed that the respondents shall make an endorsement of the title of the case, suit number, name of the parties and other relevant details while depositing the cheques in the bank. The compliance be made by all concerned.
32 Copy of the order shall be kept for receiving the compliance. Put up for receiving the compliance on 17.5.2013.
Announced in open Court ( [ENTITY] ) Dated : 17.4.2013 [CASE NUMBER] MACT-02, (SE) Saket Courts, New Delhi