IN THE COURT OF MS. [ENTITY], PO: MOTOR ACCIDENT CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI Suit No.518/14 Date of Institution: 18.09.2014 IN THE MATTER OF: 1. Smt. [ENTITY] W/o Late Shri [ENTITY] 2. Smt. [ENTITY] W/o Late Shri Mangat (since deceased) 3. [ENTITY] S/o Late Shri [ENTITY] 4. [ENTITY] S/o Late Shri [ENTITY] 5. [ENTITY] D/o Late Shri [ENTITY] All R/o: H.No.1564, Village Munna Lal Tehsil Mawana, Distt. Meerut U.P. Petitioners Versus 1. [ENTITY] S/o Shri Manphool Singh R/o Village Machri Daurala Distt. Meerut, U.P. [CASE NUMBER] [ENTITY] Vs [ENTITY] & Ors. Page 1 of 39 2. [ENTITY] S/o Shri Ashok Kumar R/o H.No.195, Kesari Bhawan Baunjha Ghaziabad, U.P. 3. [ENTITY] S/o Shri Jagdish R/o H.No.225, VillageMachri Daurala Distt. Meerut, U.P. 4. The [ENTITY] Jeewan Bharti Building Connaught Place New Delhi. 5. [ENTITY] 101106, BMC House Connaught Place New Delhi. Respondents
Final Arguments heard : 17.12.2015 Award reserved for : 05.01.2016 Date of Award : 05.01.2016 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/[SECTION] and [SECTION] of [ACT], as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioners that on 06.04.2014, the deceased [ENTITY] was going to his village from Meerut on motorcycle bearing No.UP14BR3492 with [ENTITY]. When they reached near village Saini in the meantime, a truck bearing No.UP15BT2132 being driven by the respondent No.1 in a shooting speed, rash and negligent manner without caring for the rules of traffic came from behind to overtake and incidentally applied the brakes on the road due to which the motorcycle struck the truck and the deceased died on the spot. [ENTITY] received grievous injuries and he was admitted in Divya Jyoti Nursing Home Ganga Nagar, Meerut and [ENTITY] died on the spot. It is averred that the petitioners had spent a sum of Rs.50,000/ on the last rites of the deceased. It is contended that the accident took place solely due to the rash and negligent driving of the respondent No.1 who drove the offending vehicle at a very high speed, rashly and negligently. The respondent No.1 could have easily avoided and averted the accident, if he drove the offending vehicle at a slow speed, carefully and applied the brakes at the relevant time. It is alleged that the respondent No.1 had driven his vehicle in contravention of traffic rules and was entirely responsible for the accident and hence was liable to pay the compensation. It is stated that in respect of the accident FIR under [SECTION] [ACT] was registered at PS Incholi.
3. It is submitted that the deceased was 50 years of age and doing service with M/s Divya Associates and was earning a sum of Rs.7,800/ per month from his job. It is contended that the deceased would have earned much more in the future. The deceased was spending his earning for the betterment and benefit of the petitioners. It is averred that all the family members had suffered great loss due to the untimely death of the deceased and if the deceased had not died in the unfortunate accident, he would have earned much more in future and would have lived and worked upto the age of 85 years. It is submitted that the petitioners were having great love and affection for the deceased and they had suffered and were still suffering from great pain, shock, mental torture and agony besides financial loss. It is stated that the deceased had left behind the petitioners who had lost their loveliest thing and were wholly dependent upon the deceased for every walk of life. All the petitioners were maintained and supported by the deceased and the accident had ruined the petitioners physically, mentally and financially. The petitioners were in a sense of trauma and did not respond to the verbal commands due to the untimely death of the deceased. It is averred that the respondents No.1 and 2 are the drivers, the respondents No.2 and 3 are the owners and the respondents No.4 and 5 are the insurers of the offending vehicles, therefore all the respondents are jointly and severally liable to pay the compensation to the petitioners. It is prayed that an amount of Rs.50,00,000/ be awarded as compensation in favour of the petitioners and against the respondents.
4. Written statement on behalf of the respondents No.1 and 3 was filed denying the averments made in the claim petition. It is stated that the driver of the truck bearing No.UP15BT2132 at the time of driving the vehicle was having a valid driving license and its validity was from 04.03.1999 till 03.03.2019. It is averred that the vehicle was insured with New India Assurance Company vide insurance policy [CASE NUMBER] and the period of cover was 07.10.2013 to 06.10.2014. The vehicle had a permit No.A0216276 and date of expiry of the permit was 04.09.2009 to 03.09.2014. It had fitness No.0051971 valid from 16.09.2013 to 23.09.2014. It is submitted that the driver of the vehicle was not at fault and there was no carelessness of the driver and every mistake was of the motorcycle rider.
5. Written statement on behalf of the respondent No.4 was filed taking the preliminary objections that the petitioners had not disclosed any cause of action against the respondent No.4, otherwise also there was no privity of contract between the petitioners and the respondent No.4. It is submitted that the alleged involvement of the vehicle in the accident was never intimated by the insured to the respondent No.4 at any point of time. It is contended that in case the insured wants to take the benefit of the policy then he would have to prove that he had not committed any breach of terms and of the policy and the vehicle at the time was being driven by a person who was holding a valid and effective driving license and was qualified to hold the same on the date of the alleged accident and in case the insured failed to prove the same, no liability could be fastened on the respondent No.4. It is alleged that the amount of compensation claimed by the petitioners is highly exorbitant, irrational and without any basis. It is submitted that it is a case of contributory/ composite negligence because two vehicles collided with each other. It is contended that it is a case of negligence on the part of the deceased himself and if he had been driving the vehicle in a cautious manner, then the accident would not have happened. It is submitted that this court lacks jurisdiction as neither the petitioners were residents of Delhi nor the accident had taken place in Delhi, hence this court was not competent to try and entertain the present petition. The averments made in the claim petition were denied. It is submitted that the insurance policy bearing [CASE NUMBER] was issued in the name of [ENTITY] in respect of vehicle bearing No.UP15BT2132 for the period 07.10.2013 to 06.10.2014.
6. Written statement on behalf of the respondent No.5 was filed taking the preliminary objections that no cause of action had arisen within the jurisdiction of this court because neither the accident was caused within the jurisdiction of this court nor the respondents or petitioners were residing within the jurisdiction of this court. It is averred that all the petitioners were not dependent upon the earning of the deceased, hence they were not entitled for the compensation as claimed in the petition. It is submitted that the petitioners had impleaded the owner and driver of the motorcycle in the array of respondents but intentionally did not choose to file the registration certificate and driving license of the driver along with the petition and also had not supplied the copy of the same and the respondent No.3 was known to the claimants. It is contended that as per the contents of the criminal record, the accident was caused due to the negligence of the driver of the truck and not the negligence of the driver of the motorcycle on which the deceased was traveling as pillion rider. It is alleged that the petitioners have not approached the court with clean hands. It is averred that if at any stage of the proceedings, it is proved that the driver of the insured vehicle was not negligent at the time of the accident or had contributed partially in the alleged accident then the amount of the compensation shall be apportioned accordingly and the insurance company shall only be liable to the ratio of negligence as held by the court. It is submitted that in case the driving license of the driver is found fake and fitness of the vehicle was also found fake on the date of the accident on verification conducted by the insurance company through its investigator, then the insurance company would not be liable to indemnify the insured as per the terms and conditions of the policy. The averments made in the claim petition were denied. It is denied that the accident took place due to the negligence of the driver of the insured vehicle. It is submitted that the vehicle bearing No.UP14BR3492 was insured with the respondent No.5 vide insurance policy [CASE NUMBER] for the period from 13.05.2013 to 12.05.2014 in the name of [ENTITY]. It is denied that the petitioners are financially dependent upon the deceased. It is averred that the amount claimed by the petitioners is vexatious, high and excessive and not supported by any documentary evidence.
7. From the pleadings of the parties, the following issues were framed vide order dated 5.03.2015:
1. Whether the deceased sustained fatal injuries in the accident which occurred on 06.04.2014 at about 08:40 P.M. near Saini Village, Meerut caused by rash and negligent driving/ composite negligence of vehicle no.UP15BT2132 driven by respondent no.1 and owned by respondent no.3 and vehicle no.UP14BR3492 driven and owned by respondent no. 2 and insured with respondents no.4 and 5 respectively? OPP
2. Whether the LRs of the deceased are entitled for compensation? If so, to what amount and from whom?
3. Relief.
Vide order dated 28.10.2015, it was directed that the petitioners shall not be entitled to interest from the date of framing of issues i.e. 5.3.2015 till the date of award, if any.
8. On behalf of the petitioners, the petitioner No.1 Smt. [ENTITY] appeared in the witness box as PW1 and led her evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. She stated that the criminal case was pending trial before the court of the learned Chief Judicial Magistrate, Meerut. She stated that the deceased was aged about 50 years and he was working with Divya Associates, Govind Plaza, Meerut City and earning a sum of Rs.7,800/ per month and getting Rs.3,000/ per month for over time. She stated that all the family members were fully dependent upon the income of the deceased. She stated that she had suffered grave mental tension, torture and agony due to the death of her husband and she had been deprived of love, affection, care and company and protection which was provided by her deceased husband. Copy of salary slips of the deceased Shri [ENTITY] for the months of JanuaryMarch 2014 are Ex.PW1/1 (colly), copy of death certificate of the deceased is Ex.PW1/2, copy of voter identity card of the deceased is Ex.PW1/3 and copies of voter identity cards of the petitioners are Ex.PW1/4 (colly) and copy of ration card is Ex.PW1/5.
9. The respondent No.2 [ENTITY] was examined by the petitioners as PW2 and he led his evidence by way of affidavit which is Ex.PW2/A. He stated that he was the eye witness of the case. On 06.04.2014, he was going to his village on motorcycle bearing No.UP14BR3492 with the deceased [ENTITY] who was sitting as a pillion rider on his motorcycle. When they reached near Village Saini, in the meantime, a truck bearing No.UP15BT2132 being driven by the respondent/ driver in a shooting speed, rash and negligent manner without caring for the rules of the traffic came from behind to overtake and incidentally applied the brake on the road due to which the motorcycle struck the truck and the deceased died on the spot and he received grievous injuries and was admitted to Divya Jyoti Nursing Home, Ganga Nagar, Meerut. He stated that the accident took place solely due to rash and negligent driving of the driver of the vehicle who drove the offending vehicle at a very high speed, rashly and negligently and the respondent No.1 could have easily avoided and averted the accident, if he drove the offending vehicle at a slow speed, carefully and if he had applied the brakes at the relevant time. PE was closed on 3.7.2015. RE was closed on 3.7.2015.
10. I have heard the Learned Counsels for the respondents No.4 and 5 and perused the record. Written submissions were also filed on behalf of the respondent No.5 which I have perused. The petitioners No.1 and 4 were also examined on 19.11.2015 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in [CASE NUMBER] titled [PRECEDENT]. At the outset it may be mentioned that an objection was taken by the respondents No.4 and 5 that this court lacks the territorial jurisdiction to entertain the petition as the accident had taken place in UP and neither the petitioners nor the respondents were residents of Delhi. A perusal of the record shows that the address of the petitioners is of Meerut. The address of the respondents No.1, 2 and 3 is also of U.P. though the address of the respondents No.4 and 5 has been stated to be of Connaught Place. It was not stated specifically from where the policy in respect of the truck was issued by New India Assurance Company Limited though it appears to bear the stamp of Bombay. As regards the policy in respect of the motorcycle issued by [ENTITY] the petitioners had placed on record an attested copy of the policy on which it was written that as per record policy issuing office was 'here'. Due to the objection taken by respondent No.5, the officer of the company Shri [ENTITY], Administrative Officer was directed to appear in court and on 23.7.2015 he had stated that he had given the verification of the policy as per which the policy issuing office was 'here' and policy was verified. However he had tried to contend that the policy was in fact issued by the dealer. Thereafter the statement of Shri [ENTITY], Incharge, Hero Moto Corp. Vertical, NIC was recorded on 6.8.2015 wherein he had stated that DOX, BMC House, Connaught Place was the Nodal Office of the TieUp between Hero Motor Corp. and National Insurance Company Ltd. and accordingly the policy issuing office for the purpose. He had further stated that the dealers were authorized to receive the premium on behalf of NIC and to counter sign the policy documents and the contract was concluded at the dealership premises but the policy issuing office was at Delhi. Thus he had stated about the policy issuing office being within the jurisdiction of this Tribunal. It was however contended by the learned counsel for the respondent No.5 that even that would not confer jurisdiction on this Tribunal.
11. The learned counsel for the respondent No.5 has relied upon the judgment of the Hon'ble High Court of Karnataka in [PRECEDENT] decided on 7.8.2012. In the said judgment, the question of jurisdiction of the Tribunal was discussed at length and it was observed that [SECTION] of the Act, clearly demonstrates that a claim petition cannot be instituted before the Tribunal, within whose local limits, the defendantInsurance Company carries on business. It was observed that u/[SECTION] of the Act the jurisdiction is conferred on the Tribunal within local limits of whose jurisdiction the defendant resides and not carries on business. It was further observed that:
"If the jurisdiction is conferred on or recognized of the claims Tribunal, within whose local limits, the Insurance Company carries on business, perhaps that will create a chaotic situation. The Insurance Companies have their offices/ branch offices all over the country. That seems to be the reason why the legislature, in [SECTION] of the Act, did not confer jurisdiction on the claims Tribunal within whose local limits the defendant i.e. the Insurance Company "carries on business".
However the question of jurisdiction being based on location of policy issuing office of the insurance company was not specifically raised therein. In [CASE NUMBER] decided on 25.3.2013 the insurance company challenged the jurisdiction of the Tribunal to entertain the claim petition. In that case the claim petition was filed in City Civil Court at Calcutta where neither the claimants resided, nor they carried on business, nor the accident occurred, nor the policy issuing office of the insurance company was situated within the jurisdiction of city civil court at Calcutta, nor the owner of the offending vehicle resided within the jurisdiction of the City Civil Court at Calcutta. However, the regional office of the insurance company was situated within the territorial jurisdiction of City Civil Court at Calcutta. It was observed that a plain reading of the provision makes it clear that three options are given to the claimants for choosing the Tribunal where such application can be filed. These options are as follows: "(i) The claimants can file the claim petition in the claims Tribunal having jurisdiction over an area in which the accident occurred, i.e. with reference to the place of occurrence of the accident, or
(ii) The claim petition can be filed in the claims Tribunal within the local limits of whose jurisdiction the claimants reside or carries on business, or
(iii) The claim petition can be filed in the claims Tribunal within the local limits of whose jurisdiction the defendant resides."
It was further held:
"The provision under [SECTION] of the said Act is the only provision which deals with the jurisdiction of the Tribunal where the claim petition can be filed by the claimants. Ofcourse, three options are given to the claimants for choosing a particular Tribunal for filing such claim petition before it.
We have examined the said provision minutely. So far as the first option is concerned, we have no hesitation to hold that the City Civil Court jurisdiction cannot be invoked as the accident did not occur within the territorial jurisdiction of the City Civil Court. So far as the second option is concerned, we have no hesitation to hold that the City Civil Court has no territorial jurisdiction to entertain the said claim petition as none of the claimants resides, and/or carries on business within the territorial jurisdiction of the City Civil Court. Now, we have to examine as to whether the claimants can maintain this application in City Civil Court by exercising the last option which is provided in the said provision. The last option gives a right to the claimant to file an application to the claim Tribunal within the local limits of whose jurisdiction the defendant resides without making any reference as to the address where the defendant carries on business.
The language used in the last option is conspicuously different from the language used in the second option, so far as the business address of the parties are concerned. Though a comprehensive and/or inclusive provision was made in the second option by referring to both the residential and/or business address of the claimants yet no reference was made in the third option, as to the business address of defendants.
We all know that while interpreting any provision of any statute, the Court can neither add, nor can subtract anything from the provisions made in the statute. The Court has to interpret the provision of a statute, by reading the provision itself without any modification. If by applying the said principle, the provision contained in the third option is considered, then the business address of the defendant cannot be a relevant criteria for selection of the Tribunal for filing such a claim petition before it. Thus, we hold that while selecting the Tribunal for filing such claim petition in exercise of the third option, a tribunal can be selected with reference to the residential address of the defendant. We, further hold that the business address of the defendant cannot be a decisive factor for selection of the Tribunal for filing a claim petition before it.
Mr. [ENTITY], learned Advocate, however, submits that the expression 'resides' which is used in the last option is an inclusive provision which includes 'carries on business' as the insurance company being the juristic person cannot reside but can carry on business at its business place. We have considered his submission in the present context. So far as the claim petition is concerned, the owner of the offending vehicle is required to be added as the principal defendant. Ofcourse in view of the provision contained in [SECTION] of the [ACT], the insurance companies can also be added as parties in such proceeding because of the liability it undertakes in the policy under [SECTION] of the [ACT]. At the same time, we cannot be unmindful of the fact that a claim petition can also be maintained against the owner of the offending vehicle, without joining the insurance company. Joining the insurance company in the claim petition is optional. As such, the business address of the insurance company does not find any place in the third option given to the claimants for choosing the forum.
Thus, we hold that if the owner of the offending vehicle resides within the territorial jurisdiction of the Tribunal, the jurisdiction of the said Tribunal can be invoked in view of the last option available under [SECTION] of the said Act.
We, thus, conclude that since the reference of the business address of the defendant is not given in the last option of the said provision, we cannot hold that the claimants can file an application in a Tribunal where the insurance company carries on business.
Even assuming that the City Civil Court's jurisdiction can be invoked with reference to the business address of the insurance company, as suggested by Mr. [ENTITY], still then we hold that City Civil Court lacks territorial jurisdiction to entertain the said claim petition as the policy issuing office of the insurance company situates beyond the territorial jurisdiction of the City Civil Court at Calcutta. If we have to accept the submission of Mr. [ENTITY] that since the insurance office has its regional office within the territorial jurisdiction of the City Civil Court, the City Civil Court has jurisdiction to entertain the said petition then we will have to hold that whenever any accident occurs in any part of India, the claimants can file a claim petition by accepting the jurisdiction of any Tribunal of his own choice where the insurance company maintains either its regional office or a branch office, even though the policy issuing office is not situated within the territorial jurisdiction of the Tribunal. If we agree with such submission of Mr. [ENTITY], then it will necessarily follow that if an accident occurs at Delhi, a claimant residing at Delhi can file a claim petition at Calcutta by taking the jurisdiction of the Calcutta Tribunal as the insurance company which issued the insurance policy at Delhi also maintains a branch office at Calcutta within the territorial jurisdiction of the concerned Tribunal at Calcutta. This is, in our view, impossible.
Certainly prejudice would be caused to the defendants, including the insurance company, inasmuch as if, in such a case an application is allowed to be filed in Calcutta, the policy issuing office of the insurance company will not feel it convenient to contest the said proceeding in Calcutta as the relevant papers relating to the insurance company are not maintained in its branch office at Calcutta. All papers relating to the insurance company are maintained in the branch office which issued the insurance policy."
It was also observed:
"Before concluding we feel it necessary to indicate here that principle which was laid down by the Hon'ble Supreme Court in the case of [ENTITY] (Supra) has no application in the facts of the instant case as that was a case where we find that undisputedly the victim had been working in the Nainital District and was residing there during the period of accident. Thus, the jurisdiction of the Tribunal at Nainital was rightly invoked in the said case, in exercise of the second option available to the claimants under [SECTION] of the said Act. That apart, no objection relating to the jurisdiction of the said Tribunal to entertain the claim petition was raised by any of the defendants of the said case before the Tribunal. Such objection was raised for the first time before the High Court. In this context it was held therein that such an objection cannot be raised before the High Court for the first time, in view of [SECTION] of the [ACT], but in the present case, the facts are completely different. Here the insurance company appeared in the said proceeding before the Tribunal and raised an objection with regard to the jurisdiction of the said Tribunal to entertain the said claim petition in the written statement itself. Thus, before settlement of the claim, such an objection was raised by the defendant in the said proceeding before the Tribunal. As such, the principles which were laid down by the Hon'ble Supreme Court in the facts of the said case, cannot be applied in the instant case."
Thus it was observed in the above case that certainly prejudice would be caused to the defendants on the ground of territorial jurisdiction, including the insurance company, inasmuch as if, in such a case an application is allowed to be filed in Calcutta, the policy issuing office of the insurance company will not feel it convenient to contest the said proceeding in Calcutta as the relevant papers relating to the insurance company are not maintained in its branch office at Calcutta and all papers relating to the insurance company are maintained in the branch office which issued the insurance policy.
12. In [ENTITY] v Kutiswar Pramanik & Another, 2010 ACJ 1749 it was held as under:
"31. In our view, the functional interpretation of the provisions of [SECTION] would be that the claim application could be filed, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business and within the local limits of whose jurisdiction the defendant resides or to the Claims Tribunal within the local limits of whose jurisdiction the policy issuing office of the insurance company situates."
Thus, it was categorically held that jurisdiction could lie with the Claims Tribunal within the local limits of whose jurisdiction the policy issuing office of the insurance company is situated and in the instant case, the officer of the respondent No.5 has stated that the policy issuing office was within the jurisdiction of this Tribunal. It was also contended that the respondent No.5 had been joined as a respondent only to confer jurisdiction on this Tribunal and there was no negligence of the respondent No.2 i.e. the driver of the motorcycle which was insured with the respondent No.5 in the accident. However, it was alleged that the present was a case of composite negligence of two vehicles. As such this Tribunal would have the jurisdiction to entertain the petition.
13. My findings on the specific issues are as under:
14. As the petition has been filed U/[SECTION] [ACT] it was incumbent upon the petitioners to prove that the deceased sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in [PRECEDENT] as follows:
"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 Apex Court in [PRECEDENT] (supra). 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."
It is established law that in a claim petition under [ACT], the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In [PRECEDENT], it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under [SECTION] and [SECTION] of the [ACT].
15. The case of the petitioners is that on 06.04.2014, the deceased [ENTITY] was going to his village from Meerut on motorcycle bearing No.UP14BR3492 with [ENTITY]. When they reached near village Saini in the meantime, a truck bearing No.UP15BT2132 being driven by the respondent No.1 in a shooting speed, rash and negligent manner without caring for the rules of traffic came from behind to overtake and incidentally applied the brakes on the road due to which the motorcycle struck the truck and the deceased died on the spot. [ENTITY] received grievous injuries and he was admitted in Divya Jyoti Nursing Home Ganga Nagar, Meerut and [ENTITY] died on the spot. It was contended that the accident took place solely due to the rash and negligent driving of the respondent No.1 who drove the offending vehicle at a very high speed, rashly and negligently. The respondent No.1 could have easily avoided and averted the accident, if he drove the offending vehicle at a slow speed, carefully and applied the brakes at the relevant time. It was alleged that the respondent No.1 had driven his vehicle in contravention of traffic rules and was entirely responsible for the accident and hence was liable to pay the compensation. It was stated that in respect of the accident FIR No.144/14 under [SECTION] [ACT] was registered at PS Incholi. In paras 1 and 3 of her affidavit Ex.PW1/A the petitioner No.1 had stated about the accident. The petitioners in support of their case had examined PW2 who has also been joined as respondent No.2 to the petition who in paras 2 to 4 of his affidavit Ex.PW2/A had deposed about the manner of the accident.
16. The petitioners had filed the certified copy of the criminal record consisting of copy of charge sheet; copy of FIR; copy of site plan; copy of post mortem report, copy of mechanical inspection report of the Tata truck bearing No.UP15BT2132 and of the motorcycle bearing No.UP14BR3492, copy of insurance policy in respect of the two vehicles, copy of DL of the respondent No.1, copy of RC of the offending truck, copy of goods carriage permit in respect of the truck, copy of certificate of fitness in respect of the truck and copy of RC of the motorcycle of respondent No.2. As per the FIR No.144/14 under [SECTION] [ACT], PS Incholi the case was registered on the basis of complaint of Shri [ENTITY] wherein he had stated about the manner of the accident. As per the charge sheet the respondent No.1 has been charge sheeted for the offence under [SECTION] [ACT].
17. The respondent No.2 had not filed the written statement and was in fact examined as PW2. The respondents No.1 and 3 had filed the written statement submitting that the driver of the vehicle was not at fault and there was no carelessness of the driver and every mistake was of the motorcycle rider. However the respondents No.1 and 3 did not appear to crossexamine PWs. During crossexamination by the learned counsel for the National Insurance Company PW1 admitted that the accident had taken place in Meerut/ Ghaziabad. She admitted that she was not an eye witness to the accident. She stated that her husband was going by a motorcycle at the time of the accident. She stated that at the time of the accident the motorcycle was being driven by [ENTITY] and the motorcycle belonged to [ENTITY]. Thus PW1 admitted that she was not an eye witness to the accident. It is pertinent that she stated that at the time of the accident the motorcycle was being driven by [ENTITY] and the motorcycle belonged to [ENTITY].
18. The petitioners in support of their case had examined PW2 [ENTITY] who was stated to be an eye witness to the case. It is significant that PW1 had stated that [ENTITY] was driving the motorcycle and he was also the owner of the motorcycle and in fact he had been joined as respondent No.2 and was also stated to be liable to make payment of compensation to the petitioners. A separate claim petition was also filed on behalf of [ENTITY] claiming compensation. Further, he being the respondent No.2 to the petition would clearly be an interested witness. During crossexamination by the learned counsel for the insurance company/ respondent No.4 PW2 stated that at the time of the accident, he was going to his Home Town i.e. from Ghaziabad to Mawana along with his uncle Shri [ENTITY] by motorcycle bearing No.UP14BR3492. He was driving the motorcycle and his uncle Shri [ENTITY] (deceased) was a pillion rider. He stated that he was wearing helmet. The accident took place near Village Saini. The accident had occurred at about 8.008.30 p.m. He stated that the road on which he was driving at the time of accident was a single lane road with no divider. The road was approximately 3035 feet wide. At the time of the accident the speed of his motorcycle was around 4045 k.m./hr. He stated that the truck bearing registration No.UP15BT2132 which was coming from behind tried to overtake him from behind and he did not give him any indication or horn to give way. He stated that the road on which the accident occurred was a two way road and traffic was coming from the opposite side also. The truck suddenly tried to overtake him from behind from his right hand side without any indication. He stated that his motorcycle was having rear view mirror but he was unable to see him. On impact, he and pillion rider his uncle fell along with his bike from the left side of the road. He stated that he received grievous injuries on his hands, stomach, face and on his jaws and he could not see the injuries sustained by his uncle. After some time of the impact, he gained senses and the bystanders asked him how he was and they called at 100 number which came after 1520 minutes at the spot of the accident. After some time he received the news that his uncle had expired.
19. PW2 thus reiterated that he was driving the motorcycle and his uncle Shri [ENTITY] (deceased) was a pillion rider. This also shows that there was relationship between him and the deceased. He stated that the road on which he was driving at the time of accident was a single lane road with no divider and that it was a two way road and traffic was coming from the opposite side also and the site plan also shows the same. He stated that at the time of the accident the speed of his motorcycle was around 4045 k.m./hr but if that were so, he would have been in a position to control his motorcycle in time and the impact of the accident would not have been so much that the pillion rider died and this shows that he was driving at speed. He stated that the truck bearing registration No.UP15BT2132 which was coming from behind tried to overtake him from behind and he did not give him any indication or horn to give way and that the truck suddenly tried to overtake him from behind from his right hand side without any indication. However this shows that the truck was overtaking from the correct side and there can be no question of suddenly trying to overtake as it was for PW2 to have been alert and he would have seen the truck approaching. In fact he had stated that his motorcycle was having rear view mirror but he was unable to see him which shows that PW2 himself was negligent, otherwise he would have seen the truck. It is thus clear that not only PW2 was driving at speed but he was also not exercising due care and caution otherwise he would have seen the approaching truck.
20. The respondents No.1 and 3 who are the driver and owner of the offending truck have not adduced any evidence to dispute the version put forth by the petitioners or in the criminal record. The criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under [SECTION] [ACT]. In [PRECEDENT] it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondents No.1 and 3 have also not led any evidence to prove any other version of the accident. There is no evidence from the respondents No.1 and 3 to disprove the particulars of the accident or the involvement of vehicle No.UP15BT2132. In view of the testimony of PW1 and PW2 and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima facie proved. At the same time, the respondent No.2 had also contributed to the happening of the accident though in the facts and circumstances of the case, the negligence of the respondent No.2 is apportioned as 25% and of the respondent No.1 as 75%.
21. It was stated that due to the accident the deceased died at the spot. The post mortem report is on record as per which the death was due to shock and haemmorhage as a result of ante mortem injury sustained. Thus it stands established that the deceased had sustained injuries in the alleged accident. This issue is accordingly decided in favour of the petitioners and against the respondents.
Issue No.2
22. Since issue No.1 has been decided in favour of the petitioners they would be entitled to compensation as per the provisions of the Act. The petitioners are the legal representatives of the deceased being the wife, children and mother of the deceased. PW1 was crossexamined on the point of dependency and during crossexamination by the learned counsel for the National Insurance Company PW1 stated that her motherinlaw was aged about 80 years, son [ENTITY] was aged about 29 years, [ENTITY] was aged about 25 years, daughter [ENTITY] was 32 years of age. She stated that her daughter [ENTITY] was married and living with her husband. She stated that her son [ENTITY] was also married. Her son [ENTITY] was working in Meerut. Her second son [ENTITY] was pursuing B.Com. She stated that her husband had five other brothers volunteered they were living separately. She stated that she was residing with her husband and children. Her motherinlaw was residing with her. Thus PW1 stated that her motherinlaw was aged about 80 years and that she was residing with her. During examination by the Tribunal, the petitioner No.1 Smt. [ENTITY] stated that she was 50 years old. She stated that she had three children namely [ENTITY] aged about 30 years, [ENTITY] aged about 28 years and [ENTITY] aged about 32 years. She stated that [ENTITY] was working and [ENTITY] had been married 5 years prior. She stated that her mother in law had expired in August, 2015. She stated that she was not working. Being the wife, the petitioner No.1 would be regarded as dependent on the deceased as also the petitioner No.2 being the mother of the deceased though she expired subsequently. PW1 had stated that her son [ENTITY] was aged about 29 years and daughter [ENTITY] was 32 years of age and that her daughter [ENTITY] was married and living with her husband. It is thus seen that all the children were major and the petitioners No.3 and 5 were also married and as such they cannot be regarded as dependent on the deceased. During examination by the Tribunal, the petitioner No.4 [ENTITY] stated that he was 28 years old. He stated that he was preparing for M.Com. at present. Though the petitioner No.4 was stated to be studying but being a major he would not be regarded as dependent on the deceased. As such only the petitioners No.1 and 2 would be regarded as dependent on the deceased.
23. The petitioners have claimed loss of dependency on the basis that the deceased was 50 years of age and doing service with M/s Divya Associates and was earning a sum of Rs.7,800/ per month from his job. It was contended that the deceased would have earned much more in the future. The deceased was spending his earning for the betterment and benefit of the petitioners. It was averred that all the family members had suffered great loss due to the untimely death of the deceased and if the deceased had not died in the unfortunate accident, he would have earned much more in future and would have lived and worked upto the age of 85 years. It was submitted that the petitioners were having great love and affection for the deceased and they had suffered and were still suffering from great pain, shock, mental torture and agony besides financial loss. It was stated that the deceased had left behind the petitioners who had lost their loveliest thing and were wholly dependent upon the deceased for every walk of life. All the petitioners were maintained and supported by the deceased and the accident had ruined the petitioners physically, mentally and financially. The petitioners were in a sense of trauma and did not respond to the verbal commands due to the untimely death of the deceased.
24. PW1 in paras 2 and 4 to 6 of her affidavit Ex.PW1/A had deposed to that effect. She stated that the deceased was aged about 50 years and he was working with Divya Associates, Govind Plaza, Meerut City and earning a sum of Rs.7,800/ per month and getting Rs.3,000/ per month for over time. She stated that all the family members were fully dependent upon the income of the deceased. She stated that she had suffered grave mental tension, torture and agony due to the death of her husband and she had been deprived of love, affection, care and company and protection which was provided by her deceased husband. Copy of salary slips of the deceased Shri [ENTITY] for the months of JanuaryMarch 2014 are Ex.PW1/1 (colly). During cross examination by the learned counsel for the National Insurance Company PW1 denied the suggestion that she had filed false and fabricated documents in respect of employment of her husband. She admitted that her husband was working in Meerut. She denied the suggestion that her husband was not getting overtime of Rs.3000/ per month. She was not aware if her husband had a bank account. She denied the suggestion that her husband was not earning Rs.7,800/ per month or that he was not an employee of Divya Associates. Thus PW1 admitted that her husband was working in Meerut. Apart from that only suggestions were put to her which she denied. The petitioners had placed on record pay slips of the deceased for the months of January to March, 2014 which show that he was earning Rs.7,800/ per month. No witness has been produced in the witness box to prove that the deceased was indeed working with Divya Associates or to show the amount that he was earning. The learned counsel for the respondent No.5 had argued that the income documents had not been duly proved. However there is even no reason to dispute Ex.PW1/1 (colly). PW1 had stated that the deceased was getting Rs.3,000/ per month for overtime. However there is nothing on record to show the same. Thus the income of the deceased for computation of loss of dependency is taken as Rs.7,800/ per month.
25. In the instant case the deceased was stated to be 50 years old at the time of the accident in the claim petition and PW1 had also deposed to that effect. During crossexamination by the learned counsel for the National Insurance Company PW1 stated that her husband was aged 50 years and not 53 years at the time of accident. She denied that she was deposing falsely in that regard. Copy of the voter identity card of the deceased is Ex.PW1/3 as per which his age as on 1.1.1995 was 34 years which would make him more than 53 years old on the date of the accident i.e. 6.4.2014. As per the judgment of the Hon'ble Supreme Court in [ENTITY] and others v. Delhi Transport Corporation and others 2009 ACJ 1298 (SC) the multiplier of 11 applies for calculating the loss of income where the age of the deceased is 51 to 55 years. Thus the multiplier applicable in the instant case would be of 11 for calculating the loss of income.
26. Regarding the dependency factor, as observed above, only the petitioners No.1 and 2 would be regarded as dependent upon the deceased. Thus there were two dependents on the deceased. In [ENTITY]'s case (supra) it has been held:
"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 one third (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."
Thus as the number of dependents was 2 there would be 1/3rd deduction towards personal and living expenses of the deceased.
27. As regards the future prospects a 3judge bench of the Hon'ble Supreme Court in a recent judgment in [PRECEDENT] decided on 15.5.2015 has relied on the judgment in [PRECEDENT] where in the Hon'ble Supreme Court held as under
(in the case decided on 15.5.2015 the question was of grant of future prospects to selfemployed victim below 40 years):
"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 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."
12.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."
In the instant case the deceased was more than 53 years old. Thus in view of the well settled legal position there has to be an addition of 15% of the actual salary to the income of the deceased towards future prospects. Accordingly the loss of dependency as per the monthly income i.e. Rs.7,800/ is calculated as under :
Rs.7,800/ + Rs.1,170/ (15% future prospects) = Rs.8,970/ - Rs.2,990/ (i.e. 1/3rd towards personal expenses) = Rs.5,980/ X 12 (annually) X 11 (multiplier) = Rs.7,89,360/ (rounded off to Rs.7,89,000/)
28. The petitioners are also entitled to compensation for loss of love and affection, loss of consortium, loss of estate and funeral expenses. PW1 had stated that they had spent a sum of Rs.50,000/ on the funeral expenses and in performing other last rites of the deceased at Haridwar. However there is nothing to show the same.
The total compensation is determined as under:
Loss of dependency : Rs.7,89,000/ Love and affection : Rs.1,00,000/ Loss of Consortium : Rs.1,00,000/ Loss of Estate : Rs.10,000/ Funeral expenses : Rs.25,000/ Total : Rs.10,24,000/
Thus, the total compensation would amount to Rs.10,24,000/. RELIEF
29. The petitioners are awarded a sum of Rs.10,24,000/ (Rs.Ten Lacs Twenty Four Thousand only) with interest at the rate of 9% per annum from the date of filing the claim petition till 5.3.2015 (vide order dated 28.10.2015, it was directed that the petitioners shall not be entitled to interest from the date of framing of issues i.e. 5.3.2015 till the date of award, if any) and from the date of award i.e. today till its realization, including, interim award, if any already passed in favour of the petitioners and against the respondents. Out of the awarded amount, the petitioner No.1, Smt. [ENTITY] wife of the deceased shall have a share of 70%, the petitioner No.2 i.e. the mother of the deceased has already expired so no share would go to her and the petitioners No.3 to 5 shall be entitled to a share of 10% each in the awarded amount.
30. 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 Jai Prakash Vs. [ENTITY] and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgment the award amount is to be disbursed as follows:
a) The amount falling to the share of the petitioners No.3 to 5 be released to them by transferring it into their savings account in UCO Bank, Patiala House Court, New Delhi. 20% of the share of the petitioner No.1 be released to her by transferring it into her savings account and the remaining amount out of her share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the 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.
b)The respondent No.4 shall deposit 75% of the amount and the respondent No.5 shall deposit 25% of the amount directly by way of crossed cheque in terms of the above order according to their respective share in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Smt. [ENTITY], [ENTITY], [ENTITY] and [ENTITY] within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondents No.4 and 5 shall be liable to pay further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released to the petitioner No.1.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the saving accounts of the petitioner No. 1.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner No. 1 after due verification and the bank shall issue photo identity card to the petitioner No. 1 to facilitate her identity.
g) No cheque book shall be issued to the petitioner No. 1 without the permission of the court.
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass books shall be given to the petitioner No. 1 along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
i) The original fixed deposit receipts shall be handed over to the petitioner No. 1 on the expiry of the period of the fixed deposit receipts.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
k) On the request of the petitioners, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioners.
l) The petitioners 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.
31. 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. APPORTIONMENT OF LIABILITY:
32. The respondent No.1 is the driver, the respondent No.3 is the owner and the respondent No.4 is the insurer of the truck bearing No.UP15BT2132 and the respondent No.2 is the driver and owner and the respondent No.5 is the insurer of motorcycle No.UP14BR3492. As observed above the negligence of the respondent No.1 has been apportioned as 75% and the negligence of the respondent No.2 has been apportioned as 25%. Accordingly the respondents are held liable. No evidence has been led on behalf of the respondents No.4 and 5 to show that there was any violation of the terms and conditions of the insurance policy by the respondents No.3 and 2 respectively. Being the insurers, the respondents No.4 and 5 would be liable to pay the compensation on behalf of the respondents No.3 and 2. The respondents No. 4 and 5 being the insurers are directed to deposit the award amount in their respective proportions directly in the bank account of the claimants in UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award with interest as directed in para 29 of the judgment cum award failing which they would be liable to pay interest at the rate of 12% per annum for the period of delay.
33. [ENTITY] to report in case the cheques are 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 respondents No.4 and 5 shall deposit the award amount along with 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 along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 05.04.2016. An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House for compliance. File be consigned to record room.
Announced in open court on this 5th day of January, 2016 ([ENTITY]) PO: MACT2 New Delhi