IN THE COURT OF MS. [ENTITY] : PRESIDING OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNAL : KARKARDOOMA COURTS : EAST DISTRICT : DELHI MAC PETITION NO. 333/11 UNIQUE CASE I.D. NO. 02402C0317672011 1. Sh. [ENTITY] S/o Sh. Nathu Ram 2. [ENTITY] S/o. Sh. [ENTITY] 3. [ENTITY] S/o. Sh. [ENTITY] 4. [ENTITY] D/o. Sh. [ENTITY] All are resident of : Village Ganj, Block - Raj Nagar, PS Mamitha, Distt. Chhatterpur, M.P. PETITIONERS VERSUS 1. [ENTITY] S/o. Tehsildar R/o. Village Tataarpur, Post Jiroli, PS Dandu, Tehsil Atrauli, Distt. Aligarh (UP) 2. [ENTITY] S/o Sh. Ajaypal 3. [ENTITY] S/o Sh. Ajaypal 4. [ENTITY] S/o Sh. Ajaypal All R/o Village Nagla Hansi, MajraBonai, Tehsil Atrauli, Distt. Aligarh U.P. 5. [ENTITY]. RESPONDENTS [CASE NUMBER] Page : 1/17 MAC PETITION NO. 361/11 UNIQUE CASE I.D. NO. 02402C0349942011 1. [ENTITY] D/o Sh. [ENTITY] R/o. Village Ganj, Block Raj Nagar, PS Mamitha, Distt. Chhatterpur, M.P. (Through her father being minor) PETITIONER VERSUS 1. [ENTITY] S/o. Tehsildar R/o Village Tataarpur, Post Jiroli, PS Dandu, Tehsil Atrauli, Distt. Aligarh (UP) 2. [ENTITY] S/o Sh. Ajaypal 3. [ENTITY] S/o Sh. Ajaypal 4. [ENTITY] S/o Sh. Ajaypal All R/o Village Nagla Hansi, MajraBonai, Tehsil Atrauli, Distt. Aligarh U.P. 5. [ENTITY] RESPONDENTS MAC PETITION NO. 363/11 UNIQUE CASE I.D. NO. 02402C0349902011 1. [ENTITY] S/o Sh. Parwata R/o. 125, JJ Colony (Jhuggi) Anand Vihar, Delhi. PETITIONER VERSUS [CASE NUMBER] Page : 2/17 1. [ENTITY] S/o. Tehsildar R/o Village Tataarpur, Post Jiroli, PS Dandu, Tehsil Atrauli, Distt. Aligarh (UP) 2. [ENTITY] S/o Sh. Ajaypal 3. [ENTITY] S/o Sh. Ajaypal 4. [ENTITY] S/o Sh. Ajaypal All R/o Village Nagla Hansi, MajraBonai, Tehsil Atrauli, Distt. Aligarh U.P. 5. [ENTITY] RESPONDENTS MAC PETITION NO. 193/12 UNIQUE CASE I.D. NO. 02402C0234492012 1. [ENTITY] W/o Sh. Munna R/o E - 85/125, J.J. Comp., Anand Vihar, Delhi PETITIONER VERSUS 1. [ENTITY] S/o. Tehsildar R/o Village Tataarpur, Post Jiroli, PS Dandu, Tehsil Atrauli, Distt. Aligarh (UP) 2. [ENTITY] S/o Sh. Ajaypal 3. [ENTITY] S/o Sh. Ajaypal 4. [ENTITY] S/o Sh. Ajaypal All R/o Village Nagla Hansi, MajraBonai, Tehsil Atrauli, Distt. Aligarh U.P. [CASE NUMBER] Page : 3/17 5. [ENTITY] RESPONDENTS Date of institution : 18.10.2011 Order reserved on : 01.08.2014 Date of order : 25.08.2014 J U D G M E N T
1. By a common judgment, I shall dispose off the four Claim Petitions filed by the petitioners u/[SECTION] & [SECTION] of [ACT] claiming compensation. In [CASE NUMBER], petitioners have claimed an amount of Rs.50,00,000/ for the fatal injuries upon [PRECEDENT] [ENTITY] in the road side accident dated 20.09.2011. In other three [CASE NUMBER], petitioners claimed the compensation for the simple injuries suffered by them.
2. The brief facts of the case are that on 20.09.2011 at about 6.45 am, deceased [PRECEDENT] [ENTITY] alongwith other passengers was travelling in a TSR towards Anand Vihar. As the TSR reached near Preet Vihar Metro Station, a Tractor bearing no. UP81AJ8506, driven by respondent no.1 in a rash and negligent manner came from Gagan Vihar side at a high speed, hit the TSR due to which the TSR overturned and all the passengers in the said TSR received injuries. [PRECEDENT] [ENTITY] received fatal injuries.
[CASE NUMBER]
3. The respondent no.1 is the driver, respondent no. 2 to 4 are the owners and respondent no. 5 is the insurer of the offending vehicle, they all are jointly and severally liable to make the payment of compensation to the petitioners.
4. It is worthwhile to mention that the respondents no.1 and 4 were proceeded ex parte on 02.06.2014. The respondent no. 5 filed written statement admitting that the vehicle i.e. Tractor No. UP81AJ8506 was insured with respondent no. 5/insurance company for a period from 14.01.2011 to 13.01.2012 in the names of respondents no.2, 3 and 4. It is stated that as per the conditions of Policy, the insurance was for using the Tractor only for agricultural and forestry purposes and thus the permit conditions have been violated.
5. On the basis of the pleadings, following issues were framed by Ld. Predecessor on 20.12.2012 in [CASE NUMBER] :
1. Whether petitioners prove that they are the legal heirs of deceased [ENTITY]?
2. Whether petitioners prove that [ENTITY] suffered fatal injuries in a road accident on 20.09.2011 involving Tractor bearing registration no.UP81AJ8506 being driven allegedly in a rash and negligent manner by R1?
3. To what amount of compensation, if any, the petitioners are entitled to and from whom?
[CASE NUMBER]
4. Relief.
Following issues were framed in [CASE NUMBER] :
1. Whether petitioner has suffered injuries in road side accident on 20.09.11 involving Tractor bearing registration no. UP81AJ8506 being driven allegedly in a rash and negligent manner by R1?
2. To what amount of compensation, if any, the petitioner is entitled to and from whom?
3. Relief.
6. All the cases were consolidated for recording common evidence.
In [CASE NUMBER], Sh. [ENTITY], husband of deceased examined himself as PW1 and filed his affidavit Ex.PW1/A wherein all the facts which were stated in the petition have been reiterated. Insurance Company has examined Sh. [ENTITY], Assistant, Sh. [ENTITY], Junior Clerk, RTO, Fatehgarh, Faridabad and SI [ENTITY] as R3W1 to R3W3 respectively.
7. In [CASE NUMBER], petitioners have examined themselves as PW1 and filed their affidavits Ex.PW1/A.
8. I have heard Ld. Counsel for parties, perused the entire material carefully in the light of relevant statutory provisions of law, my findings on the issues are as follows : [CASE NUMBER] ISSUE NO.1 IN [CASE NUMBER] :
Whether petitioners prove that they are the legal heirs of deceased [ENTITY]?
9. In order to decide this issue, the statement of PW1 Sh. [ENTITY], husband of deceased is worth consideration. In support of the testimony, he has produced ration card as Ex.PW1/1, his Election I Card as Ex.PW1/2 and Criminal Case Record as Ex.PW1/3. His testimony is corroborated by the DAR filed by IO wherein the names of all the petitioners have been specified as legal heirs of deceased. The documents on record clearly establish the petitioner no. 1 as the husband of deceased and petitioners no.2 to 4 as children. On the other hand, no evidence contrary to the testimony of PW1 has been brought on record by respondents. In such circumstances, there is no reason to disbelieve the testimony of PW1 and the documents brought on record. This issue is decided accordingly.
ISSUE NO. 2 in all MAC Nos. is taken together :
Whether the deceased [ENTITY] suffered fatal injuries in road side accident on 20.09.2011 involving tractor bearing no. UP81AJ8506 being driven allegedly in a rash and negligent manner by R1?
10.In [CASE NUMBER], PW1 deposed that on 20.09.2011 at about [CASE NUMBER] Page : 7/17 6.45 am, his wife alongwith other passengers was going in a TSR towards Anand Vihar. A Tractor bearing no. UP81AJ8506, driven by respondent no. 1 in a rash and negligent manner and at a high speed, hit the TSR due to which the TSR overturned and wife of PW1 received fatal injuries. The FIR was registered on the statement of [ENTITY], driver of TSR. The facts are supported and corroborated by IO of the case who had conducted the investigation in the matter. 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."
11.In the case of [PRECEDENT]. [CASE NUMBER] [CASE NUMBER] dated 05.07.12, the Hon'ble High Court of Delhi has held as under :
"8. In [ENTITY] and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Supreme Court held that in a petition under [SECTION] of the Act, the Claimants were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the [ACT]. Para 15 of the report is extracted hereunder :
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was 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."
12.The report in [ENTITY] (Supra) was relied on by the Hon'ble Supreme Court in its latest judgments in [PRECEDENT] and [PRECEDENT]."
13.In the case of [PRECEDENT], the Hon'ble High Court of Delhi has held that :
" On perusal of the award of the Tribunal, it becomes [CASE NUMBER] 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) 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".
14.In the case of [PRECEDENT], an adverse inference was drawn because the driver of 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 petitioners had any enmity with the driver of offending vehicle so as to falsely implicate him in the case. The respondent no.1 chose not to contest the matter and stood ex parte. The issue thus stands decided in favour of petitioners holding that the accident [CASE NUMBER] happened as a result of negligent driving by respondent no.1. ISSUE NO.3 :
To what amount of compensation petitioners are entitled to?OPP
15.In [CASE NUMBER], PW1 states that after being hit by the offending vehicle, [PRECEDENT] [ENTITY]/injured was removed to the hospital, where she had succumbed to her injuries. As per PM Report no. 1318/11 of GTB Hospital, the cause of death is shown as 'due to shock as a result of antemortem injuries to cervical vertebra and underline spinal cord produced by blunt force impact'. PW1 stated that deceased was earning about Rs.300/ per day. However, in the absence of any record in respect of the job or avocation of deceased, the minimum wages prevalent for unskilled worker as on the date of accident as applicable in Madhya Pradesh can be taken into consideration. These were Rs.4,395/ p.m. Thus, monthly income of deceased is taken as Rs.4,395/.
16.There is no document to show the age of the deceased. PW1 has filed Ration Card and his Election I Card Ex.PW1/2 as per which, he was 20 years of age as on 1.1.1995. As on date of accident, he was 36 years of age. The age of deceased/his wife can be considered between 31 and 35 years. Deceased was a non [CASE NUMBER] Page : 11/17 matriculate and was rendering gratuitous services towards her husband and three children. In view of dictum laid down by Hon'ble High Court of Delhi in the judgment of "[PRECEDENT]." [CASE NUMBER], decided on 30.01.2012, the value of services of deceased are taken as minimum wages plus 25% of minimum wages. The minimum wages at the relevant time were Rs.4,395/ (approx.) per month. In view of judgment rendered in [PRECEDENT]. and in "[PRECEDENT]." (Both decided by Hon'ble High Court of Delhi on 24.03.2014 and 26.03.2014 respectively) while assessing the dependency, the age of deceased is to be taken for selecting the correct multiplier. The multiplier applicable would be 16. Adding 25% of the amount, the monthly income comes to Rs.5,493/ (Rs. 4,395.00 + Rs.1,098.00). The annual income of the deceased would be Rs.10,54,656.00 (Rs.5,493.00 x 12 x 16).
17.The petitioners are also entitled to a sum of Rs.1,00,000/ towards loss of love and affection, Rs.1,00,000/ towards loss of Consortium and Rs.25,000/ towards funeral expenses.
18.The petitioners are entitled for the total amount of compensation [CASE NUMBER] Page : 12/17 towards all the heads, which is as follows : S.No. On Account of Amount (Rs.) 1 Loss of dependency Rs.10,54,656.00 2 Loss of Love and affection Rs. 1,00,000.00 3 Funeral Expenses Rs. 25,000.00 4 Loss of consortium Rs. 1,00,000.00 Total = Rs.12,79,656.00 I accordingly award an amount of compensation of Rs. 12,79,656/ in favour of petitioners no.2 to 4 and against respondents.
IN [CASE NUMBER] :
19.Soon after the accident, the petitioners were taken to LBS Hospital where they were medically examined. They suffered simple injuries. As per MLC, injured [ENTITY] suffered abrasions on arms and below sternum. As per MLC Ex.PW1/2, injured [ENTITY] suffered injury on right cheek and chin besides abrasions on left knee. Likewise injured [ENTITY] has also suffered simple injuries.
20.The petitioners have not placed on record any evidence of the amount spent by them on treatment. They are awarded a compensation of Rs.9,000/ each under the head Pain and Suffering.
[CASE NUMBER] Page : 13/17
21.Additionally, petitioners are awarded a sum of Rs.1,000/ each towards special diet, conveyance and attendant charges. Thus calculated, total compensation payable to them would be Rs.
12,000/ each.
LIABILITY
22.The respondent no.5 has examined Sh. [ENTITY], Assistant from Insurance company as R3W1 who has proved the documents i.e. insurance poicy as Ex.R3W1/1, notice U/[SECTION] [ACT] as Ex.R3W1/2 and R3W1/3 issued upon owner and driver, postal receipts as Ex.R3W1/4. R3W2 is Sh. [ENTITY] from RTO, Fatehgarh who has proved the record of driving licence. As per record, the DL issued in the name of driver, was not valid for plying Tractor. IO of the case is examined as R3W3. He also deposed that the DL during investigation was found having issued in the name of driver. Report Ex.R3W3/1 shows that DL of driver was a fake document.
23.Respondent no.5 had given the Notice U/[SECTION] [ACT] to the owner and driver to produce the driving licence. The said notice was sent by registered post and was correctly addressed. Therefore, there is presumption of service of notice. The respondents no.1 to 4 have failed to produce the driving licence and permit, even during [CASE NUMBER] proceedings before Tribunal. An inference can be drawn that there was no valid driving licence and permit with the driver at the time of accident. Therefore, respondent no.5 cannot be fastened with the liability and is entitled to recovery rights against respondents no.1 to 4 as per law.
A W A R D
24.Resultantly, the Petitions stand allowed. In [CASE NUMBER], the respondent No.5/Insurance company, in the first instance, is liable to pay the compensation of Rs.12,79,656/ but with liberty to recover the same from respondent no.1 to 4 as per law.
25.In [CASE NUMBER], the respondent No. 5/Insurance company, in the first instance, is liable to pay the compensation of Rs.12,000/ to each petitioner but with liberty to recover the same from respondent no.1 to 4 as per law.
26.The respondent No.5/insurance company is hereby directed to pay a compensation of Rs.12,79,656/, within one month to petitioners no.2 to 4. The accident occurred on 20.09.2011, therefore following judgment [PRECEDENT] [PRECEDENT]. [CASE NUMBER] passed by Hon'ble Delhi High Court, I direct that the respondent No. 5 shall also pay interest @ 9% p.a. on the total compensation amount from the date of all the Petitions till [CASE NUMBER] realization to the petitioners.
27.In [CASE NUMBER], Out of total award amount, let Rs.1,79,656/ of the same be released in favour of the petitioner no.1 forthwith. Rest of the amount shall be deposited in FDRs of equal amount for a period of 1 to 6 years in the names of petitioners no.2, 3 and 4 till they attain the age of majority.
28.The interest on the aforesaid Fixed Deposits shall be paid monthly by Automatic Credit of Interest in the Savings Account of petitioner.
29.Withdrawal from the said Account shall be permitted to petitioner after due verification and Bank shall issue Photo Identity Card to petitioner to facilitate Identity.
30.The original Fixed Deposit Receipts shall be retained by the Bank in safe custody. However, original Passbook shall be given to the petitioner / beneficiary with photocopy of FDRs. On expiry of period of each FDR, the Bank shall automatically credit the maturity amount in Savings Account of beneficiary.
31.No loan, advance, withdrawal shall be allowed on the said FDRs without permission of this court.
32.Half yearly statement of account be filed by the Bank in this court.
33.On request of petitioner, Bank shall transfer the Savings Account to [CASE NUMBER] any other branch.
34.The award amount alongwith interest be deposited by respondent no.5/Insurance Company, within 30 days in the court. 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 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 10.10.2014. Announced in the open court Dated : 25th August, 2014 (MS. [ENTITY]) PRESIDING OFFICER MACT (EAST) KKD. COURTS, DELHI.
[CASE NUMBER] [CASE NUMBER] 25.08.2014 Present : Ld. Counsel for parties.
Vide separate common judgment announced in the open court today, all the petitions stand allowed.
In [CASE NUMBER], the respondent No.5/Insurance company, in the first instance, is liable to pay the compensation of Rs. 12,79,656/ but with liberty to recover the same from respondent no.1 to 4 as per law.
In [CASE NUMBER], the respondent No.5/Insurance company, in the first instance, is liable to pay the compensation of Rs.12,000/ to each petitioner but with liberty to recover the same from respondent no.1 to 4 as per law.
The respondent No.5/insurance company is hereby directed to pay a compensation of Rs.12,79,656/, within one month to petitioners no.2 to 4. The accident occurred on 20.09.2011, therefore following judgment [PRECEDENT] [PRECEDENT]. [CASE NUMBER] passed by Hon'ble Delhi High Court, I direct that the respondent No. 5 shall also pay interest @ 9% p.a. on the total compensation amount from the date of all the Petitions till realization to the petitioners.
In [CASE NUMBER], Out of total award amount, let Rs. 1,79,656/ of the same be released in favour of the petitioner no.1 forthwith. Rest of the amount shall be deposited in FDRs of equal amount for a period of 1 to 6 years in the names of petitioners no.2, 3 and 4 till they attain the age of majority.
The interest on the aforesaid Fixed Deposits shall be paid monthly by Automatic Credit of Interest in the Savings Account of petitioner.
Withdrawal from the said Account shall be permitted to [CASE NUMBER] petitioner after due verification and Bank shall issue Photo Identity Card to petitioner to facilitate Identity.
The original Fixed Deposit Receipts shall be retained by the Bank in safe custody. However, original Passbook shall be given to the petitioner / beneficiary with photocopy of FDRs. On expiry of period of each FDR, the Bank shall automatically credit the maturity amount in Savings Account of beneficiary.
No loan, advance, withdrawal shall be allowed on the said FDRs without permission of this court.
Half yearly statement of account be filed by the Bank in this court.
On request of petitioner, Bank shall transfer the Savings Account to any other branch.
The award amount alongwith interest be deposited by respondent no.5/Insurance Company, within 30 days in the court. 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 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 10.10.2014.
(MS. [ENTITY]) PO MACT (EAST)/KKD./DELHI/25.08.2014 [CASE NUMBER]