1 IN THE COURT OF MS.[ENTITY] JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI SUIT NO.: 137/11 DATE OF INSTITUTION: 04.07.2008 Unique ID no. 02403C0755582008 1. Sh. [ENTITY] S/o Late Jagat Singh Yadav 2. Smt. [ENTITY] W/o Sh. [ENTITY] Both R/o .No. 182, Block 6, Dakshinpuri, New Delhi Petitioners. Versus 1. [ENTITY] S/o Sh. Dan Singh R/o Patharwala, Sikandrabad Distt. Bulandshahar (Driver) 2. Sh. [ENTITY] S/o Sh. Bir Singh R/o Villae & PO Baral Bulandshahar (UP) (Owner) 3. [ENTITY] Final Arguments heard on : 12.05.2011 Award reserved for : 19.05.2011 Date of Award : 19.05.2011 2 AWARD 1. This judgment cum award shall decide the petition U/s 166 and 140 of Motor Vehicle Act, 1988 as amended up to date (hereinafter referred to as the Act) filed by the petitioners for grant of compensation in a road accident. 2. Briefly stated the facts giving rise to the petition are that on 15.03.2008 the son of the petitioner and petitioner no. 1 were purchasing vegetables at Palla Pul Sabzi Mandi and when they reached Pucca Road Gali No. 4, Chauhanwali Gali at about 6.00 PM respondent no. 1 while driving vehcle
no. UP13N4947 rashly and negligently hit the son of the petitioner from the backside. It is further alleged that deceased sustained injuries and was rushed to AIIMS hospital from where he was referred to Safdurjang Hospital where he died on 16.03.2008. It is further alleged that accident took place due the rash and negligent driving of respondent no. 1 at the time of accident. It is further stated that respondent no. 1 was an employee of respondent no. 2 the owner of the vehicle and the vehicle was insured by respondent no. 3, thus all the respondents are jointly and vicariously liable to pay compensation.
3. It is further stated that deceased was aged 9 years and was a student of st 1 class, Holy Angel School, Faridabad and was the only son of petitioners and the petitioner have three daughters.
4. It is also stated that there is a longevity of life in the family of the petitioner and had the deceased not died in a road accident he would lived up to 90 years. It is further stated that life of the parents of the deceased has been ruined. It is prayed that Rs. 40 lacs be awarded as compensation to the petitioner with interest at the rate of 24% per annum from the date of filing of petition till its realisation. It is further stated that interim compensation be also awarded to the petitioner U/[SECTION] of the Act.
5. The petition was contested by the respondents. Respondent no. 1 and 2 filed WS contesting the petition on various grounds interalia that the vehicle no. UP13N4947 was not involved in the accident and the accident was caused by some other vehicle. It is denied that accident took place due to the rash and negligent driving of respondent no. 1. It is also denied that respondent no. 1 hit the son of the petitioner from backside. It is denied that respondent no. 1 and 2 are liable.
6. The respondent no. 3 also contested the petition stating that driver was not holding a valid and effective driving licence at the time of alleged accident and this fact was in the knowledge of insured as such there was violation of the terms of the policy and respondent no. 3 is not liable to indemnify the insured. All the other contents of the petition were also denied. It was however admitted that vehicle no. UP13N4947 was insured with respondent no. 3 at the time of alleged accident in the name of respondent no. 2. It is however stated that liability of respondent no. 3 is subject to the terms of the policy. It is denied that accident was caused by the vehicle bearing no. UP13N4947. It is also denied that deceased sustained injuries in the alleged accident or that he scummed to injuries sustained in the alleged accident. It is denied that petitioners are entitled to compensation from respondent no. 3.
7. On the pleadings of the parties, the following issues were framed:
1. Whether the son of the petitioner sustained fatal injuries in in a road accident on 15.03.2008 at around 6.00 PM caused by vehicle bearing no. UP13N4947 was being driven by respondent no. 1 in a rash and negligent manner, owned by respondent no. 2 and was insured with respondent no. 3?
2. Whether petitioners are entitled to compensation in both the connected cases, if yes, to what amount and from whom?
3. Relief.
8. I have heard the Ld. Counsel for parties and perused the record.
9. In support of their claim petitioners examined themselves as PW1 and PW2 who reiterating therein the contents of the petition, their testimony went unchallenged. The petitioner proved the certified copies of the FIR, chargesheet filed against respondent no. 1 U/[SECTION] IPC at PS Sarai Khawaja as well as postmortem report of deceased. The petitioners thereafter closed their evidence.
10. The respondents on the other hand did not examine any witness despite opportunity being granted.
11.To determine negligence, it has been held in [PRECEDENT] as follows: "Negligence evidence Admissibility of document, certified copy of criminal court, such as FIR recovery memo and mechanical inspection report of vehicle are documents of sufficient proof to reach the conclusion that driver was negligent and 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."
12. The certified copies of criminal record coupled with the testimony of PW2 the eyewitness establish the involvement of offending vehicle driven by respondent no. 1 in the accident. Criminal record further shows that on completion of investigation chargesheet was filed against respondent no.
1. Moreover postmortem report of the deceased reveals that death was caused due to shock due to fracture of tibia & fibula by blunt force impact. These documents are thus sufficient proof to reach conclusion that the driver/respondent no. 1 was negligent while driving the offending vehicle and caused the accident. Issue no.1 is accordingly decided in favour of the petitioners against the respondents.
COMPENSATION
13. As issue no. 1 is accordingly decided in favour of the petitioner and against the respondents, they are entitled to compensation. Petitioner no. 1 examined themselves as PW1 and PW2. They stated that their son died in a road accident caused by the vehicle no. UP13N4947. They also deposed that he was 9 years of age and was a student of Class IV at the time of accident. They proved the certificate issued by head mistress of the Holy Angels School Vedram Enclave PallI, Faridabad, haryana stating therein that [ENTITY] a student of Ist Standard in the year 20072008 and asp per their record his date of birth was 06.01.1999. The testimony of PW1 and PW2 went unchallenged, thus it has been proved that petitioners are the legal heirs of deceased and deceased aged about st 9 years was a student of 1 standard died in a road accident.
14. With regard to determination of compensation for death of young children in road accidents, it has been held in [PRECEDENT] as follows:
"The real problem that arises in the cases of death of children is that they are not earning at the time of accident. In most of the cases they were still studying and not working. Therefore, under no stretch of imagination it can be said that the parents who are appellants herein have not suffered any pecuniary loss. In fact loss of dependency by its very nature is awarded for prospective or future loss. In this context Lord [ENTITY] aptly observed in '[PRECEDENT]', as follows:
"In the case of death of an infant, there may have been no actually pecuniary benefit derived by its parents during the child's lifetime. But this will not necessarily bar the parents claim and prospective loss will found a valid claim provided that the parent establish that they had a reasonable expectation of pecuniary benefit if the child had lived."
15. The Hon'ble Supreme Court approved the method of calculation in terms of the [SECTION] of the Act, in case of non earning person and further observed in the above judgment as follows:
"Then how does one calculate the pecuniary compensation for loss of future earnings and loss of dependency of the parents, grandparents etc. in the case of nonworking student? Under the [SECTION] benefit Act in the case of a non earning person his income is notionally estimated at Rs. 15,000/ per annum. The [SECTION] is applicable to claim petitions filed U/[SECTION] of the Act. The [SECTION] provides for the multiplier to be applied in cases where the age of the victim was less than 15 years and between 15 years but not exceeding 20 years. Even when compensation is payable U/[SECTION] of the Act deviation from the structured formula as provided in [SECTION] is not ordinarily permissible except in exceptional cases."
(See [PRECEDENT], [PRECEDENT] and U.P. State Road Transport Corporation Vs. Trilok Chandra 1996 ACJ 831 (SC).
It was further observed in the above said judgment:
"In the case of [PRECEDENT] wherein 14 students from a Public School got drowned in a river due to negligence of the teachers. On the question of quantum of compensation, this court accepted that the multiplier method was normally to be adopted as a method for assigning value of future annual dependency. It was emphasised that the court must ensure that a just compensation was awarded."
"So far as the pecuniary damages are concerned we are of the concerned view both the Tribunal as well as the High Court have awarded the compensation on the basis of the [SECTION] and relevant multiplier under the Act. However, we may notice here that as far as non pecuniary damages are concerned, the Tribunal did not award any compensation under the head of non pecuniary damages. However, in appeal the High Court has elaborately discussed this aspect of the matter and has awarded Rs. 75,000/ as non pecuniary damages. Needless to say, the pecuniary damages seeks to compensate those losses which can be translated into money terms like loss of earnings, actual and prospective earnings and other out of pocket expenses. In contrast, non pecuniary damages include each immeasurable elements as pain and suffering and loss of amenity and enjoyment of life. In this context, it becomes duty of the court to award just compensation for non pecuniary loss. As already noted it is difficult to quantify the non pecuniary compensation, nevertheless, the endeavour of the court must be to provide a just, fair and reasonable compensation keeping in view all the relevant facts and circumstances into consideration. We have noticed that the High Court in present case has enhanced the amount of compensation in this category by Rs. 75,000/ in all connected appeals. We do not find any infirmity in that regard."
16. In the present case deceased was about 9 years old at the time of death and [SECTION] of the Act is applicable to young children who are nonearning members. The notional income of deceased is taken to be 15,000/ per annum with the multiplier of 15. Thus the notional loss of the deceased is to be computed as (15,000 x
15) Rs. 2,25,000/ per annum. I also award Rs. 75,000/ towards future prospects in above judgment of [PRECEDENT] A further sum of Rs. 75,000/ is awarded towards non pecuniary damages which includes elements such as pain and suffering, loss of amenities and enjoyment of life in view of the judgment of the Hon'ble High Court in [PRECEDENT]. Hence, following the above judgments, I award Rs. 3,75,000/ (Three lacs Seventy Five Thousand Only) to the petitioners for death of their child. It is directed that the amount be given to petitioner no.1 along with proportionate interest.
RELIEF:
17. Accordingly, I award a sum of Rs. 3,75,000/ (Three Lacs Seventy Five Thousand only) as compensation with interest at the rate of 7.5% per annum including interim award, if any from the date of filing the petition till its realisation in favour of the petitioners against the respondents. Both petitioners shall have an equal share in the award amount.
18. For safeguarding the compensation amount from being frittered away by the beneficiaries, it has been held in [PRECEDENT] as follows:
"in a case of compensation for death it is appropriate that the Tribunals do keep in mind the principles enunciated by this court in [PRECEDENT], in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation. In that case approving the judgment of the Gujarat High Court in [PRECEDENT], this court offered the following guidelines:
"(i) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor invested in long term fixed deposits at least till the date of the minor attaining majority.
The expenses incurred by the guardian or next friend may, however, be allowed to be withdrawn;
19.In view of the above judgment 50% of the awarded amount of both petitioners be kept in FDR in a nationalised bank for a period of 10 years. No advance or loan shall be allowed against the FDR without permission of the court. The remaining amount be released to petitioners.
20. [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. 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 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 petitioner will also file the proof of residence and furnish the details of the bank account with the [ENTITY] within a week.
LIABILITY TO SATISFY THE CLAIM:
21. Respondent no. 3, disputed its liability on the ground that the driver did not possess a valid and effective driving licence on the date of alleged accident. However, respondents did not examine any witness despite opportunity being granted.
22. With regard to the burden of proof and liability of Insurance Company it has been held in [CASE NUMBER] in [PRECEDENT] as follows:
[ACT], section 149 (2)
(a) (ii) [ACT] Fake licenceLiability of insurance companyBurden of proofInsurance Company contended that driver had no effective and valid driving licence at the time of accidentInsurance Company neither adduced any evidence nor examined any witness from transport authority in support of evidence nor examined any witness from transport authority in support of its contention Insurance company failed to discharge its onus of proving that not only driver was not holding a valid licence on the date of accident but also that driver was disqualified from holding a licence or never held a licenseWhether insurance company is exempted from liabilityHeld:
no; mere proving that on the date of accident driver did not have a licence is not enough to hold that insurance company is not liable. [[PRECEDENT] and [CASE NUMBER] relied].
23. Thus, all the respondents are jointly and severally liable. Respondent no. 3 being the insurer is directed to deposit the award amount within 30 days in UCO Bank, High Court Delhi, New Delhi. In case of any delay, respondent no. 3 shall be liable to pay interest of award amount at a rate of 12% per annum for the period of delay.
Copy of order be given dasti to both parties.
File is consigned to Record room.
Announced in the open court.
On 19.05.2011 ([ENTITY]) JUDGE: [CASE NUMBER] SUIT NO:137/11 19.05.2011
Present: Sh. [ENTITY], counsel for petitioner.
Sh. [ENTITY], counsel for respondent no. 3. An application moved on behalf of respondent no. 3 U/[SECTION] of [ACT] as respondent no. 1 and 2 are not contesting the petition, the same is allowed.
Final arguments heard.
Vide separate judgment award has been passed. File be consigned to Record Room.
([ENTITY]) JUDGE/MACTI, NEW DELHI 19.05.2011