IN THE COURT OF SHRI [ENTITY] PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNALII, DWARKA COURTS: NEW DELHI AIR No. 26/R/11 IN THE MATTER OF : 1. Smt. [ENTITY] (Widow) W/o late Sh. [ENTITY] 2. Sh. [ENTITY] (Son) S/o late Sh. [ENTITY] 3. Ms. [ENTITY] (Unmarried Daughter) D/o late Sh. [ENTITY] All residents of: 640, DDA SFS Flat Plot No. 2, Dwarka New Delhi. 4. Smt. [ENTITY] (Married Daughter) R/o Flat No. 405 Barsha Palace Barsha, Dubai. Petitioners Versus 1. Sh. [ENTITY] (Driver) S/o late Sh. Ram Parkash R/o 398, Sector10 Gurgaon, Haryana. 2. Sh. [ENTITY] (Owner) AIR No. 26/R/11 Smt. [ENTITY] & Ors. v. Sh. [ENTITY] & Ors. Page No. 1 of 14 S/o Sh. [ENTITY] R/o Sector7, Gurgaon Haryana. 3. [ENTITY] (Insurer) Respondents
Filed on : 23.09.2009 Reserved on : 11.01.2013 Decided on : 23.01.2013 : J U D G M E N T :
1. This Accident Information Report was filed by the Investigating Officer with regard to FIR No. 363/09 under [SECTION] of [ACT] regarding a Road Traffic Accident which took place on 23.08.09 resulting in fatal injuries to Sh. [ENTITY].
2. Petitioner No. 1 is widow of the deceased, Petitioner No. 2 is married son, Petitioner No. 3 is unmarried daughter and Petitioner No. 4 is married daughter of the deceased Sh. [ENTITY].
3. Respondent No. 1 is the driver, Respondent No. 2 is the owner and Respondent No. 3 is the insurer of the offending vehicle i.e. HR26AJ7140 which is involved in the accident.
4. Perusal of charge sheet, which is enclosed with this report, reveals that one Sh. [ENTITY] had stated before the Investigating Officer that on the date of accident he was coming from Janakpuri and near Sector 22, Dwarka he found a AIR No. 26/R/11 Smt. [ENTITY] & Ors. v. Sh. [ENTITY] & Ors. Page No. 2 of 14 person lying on the road in an accidental condition. He called the police by calling 100 number. PCR came and took the victim to the hospital.
5. Sh. [ENTITY] had further deposed that near the injured person, a number plate HR26AJ7140 in a broken condition was also found which was also given to the Investigating Officer by him.
6. During investigation, Investigating Officer had given a notice under [SECTION] of [ACT] to the owner of the vehicle who in reply to the notice stated that on the date of accident his father Sh. [ENTITY] was driving the vehicle and all of a sudden something had collided with the vehicle but he did not realise and when he reached home he found that his number plate was not there.
7. Respondent No. 1 was arrested by the Investigating Officer. Offending vehicle was taken into custody which was released on superdari in favour of registered owner and a charge sheet was filed by the Investigating Officer against Respondent No. 1 stating that accident took place due to rash and negligent driving by Respondent No. 1.
8. Notice of this report was issued to all the parties.
9. Insurance company filed a reply stating therein that policy bearing no. 1304782311015750 valid 19.02.09 to 18.02.10 was issued for vehicle bearing no. HR26AJ7140 in the name of Respondent no. 1 Sh. [ENTITY] but the liability of the company is subject to the terms and conditions of the policy.
AIR No. 26/R/11 Smt. [ENTITY] & Ors. v. Sh. [ENTITY] & Ors. Page No. 3 of 14
10. It is further stated that insurance company has no liability because as per driving license verification report obtained from the Licensing Authority it has been found that the driving license of driver Sh. [ENTITY] was issued on 18.10.03 and it was valid up to 17.10.08. Thereafter, it was got renewed on 01.12.09 and was valid up to 13.11.14.
11. The accident in question had taken place on 22.08.09.
12. Therefore, on the date of accident, the driver was not having any driving license.
13. Thus, the insurance company stated that it has no liability in this case.
14. Insurance company has also taken pleas under
[SECTION], [SECTION] and [SECTION] of the [ACT] and [SECTION] of the [ACT] available to it and submitted that petition be dismissed if it is found that there is any breach of these provisions.
15. Rest of the contents of claim petition were also denied and it was prayed that same be dismissed.
16. As legal offer was not possible in view of non availability of the driving license with the driver of offending vehicle at the time of accident, this report was treated as a claim petition and following issues were framed:
1) Whether Sh. [ENTITY] s/o late Sh. [ENTITY] sustained fatal injuries in a motor vehicle accident dt. 23.8.09 due to rash or negligent driving of vehicle i.e. Tata India Car No. HR26AJ7140 by R1 OPP AIR No. 26/R/11 Smt. [ENTITY] & Ors. v. Sh. [ENTITY] & Ors. Page No. 4 of 14
2) Whether the petitioners are entitled to claim compensation, if so, what amount and from whom? OPP
3) Relief.
Evidence on behalf of Petitioners:
17. Sh. [ENTITY], son of the deceased filed his evidence by way of affidavit stating in the affidavit that the deceased had expired in a road traffic accident in the year 2009 and police had lodged FIR against [ENTITY] and the case is pending before Ld. Magistrate, Dwarka Courts, New Delhi.
18. In the affidavit, he gave particulars of the LRs of deceased and deposed that at the time of accident deceased was self employed.
19. In cross examination he deposed that he is not an eye witness to the accident; his mother is a housewife and he denied a suggestion that neither he nor any other LR of the deceased was financially dependent upon the deceased.
20. On behalf of insurance company, a witness was summoned from Office of Motor Licensing Office, Transport Department, West ZoneI, Janakpuri and this witness Sh. [ENTITY] was examined as R3W1.
21. This witness produced verification report regarding driving license no. 0419980069510 which was exhibited as Ex. R3W1/1. As per exhibited documents, Respondent No. 1 was not having any driving license from 17.10.08 till 01.12.09.
22. Therefore, on 22.08.09 which is the date of AIR No. 26/R/11 Smt. [ENTITY] & Ors. v. Sh. [ENTITY] & Ors. Page No. 5 of 14 accident, this Respondent no. 1 had no driving license.
23. Second witness examined on behalf of insurance company was Sh. [ENTITY], Executive (Legal) who filed his evidence by way of affidavit stating that notice under [SECTION] of [ACT] dated 16.11.12 was issued to the driver and owner of offending vehicle to produce RC, permit, fitness and driving license. This notice was proved as Ex. R3W2/1, postal receipts, as per which this notice was sent, were proved as Ex. R3W2/14, certified copy of policy was proved as Ex. R3W2/5, report of Surveyor was proved as Ex. R3W2/6, driving license report given by Licensing Authority, Transport Department, Janakpuri, New Delhi was proved as Ex. R3W2/7.
24. No other witness was examined by any other party.
25. Issuewise findings are as under:
26. Burden of proving this issue is on the petitioners.
27. For succeeding in a claim petition under [SECTION] of the [ACT], it is for the petitioners to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
28. This is sine qua non for getting the relief.
29. There is no eye witness to the accident.
30. One Sh. [ENTITY] had informed the police that the deceased was lying in an accidental condition when number plate of vehicle no. HR26AJ7140 was also found in a broken condition at the place of accident.
31. In response to notice under [SECTION] of Motor AIR No. 26/R/11 Smt. [ENTITY] & Ors. v. Sh. [ENTITY] & Ors. Page No. 6 of 14 [ACT], Respondent No. 1 had replied that the accident had taken place while he was driving the car.
32. Respondent No. 2 in response to this notice has replied that on 22.08.09 his father was driving the car and was coming from Delhi to Gurgaon via Dwarka when something collided with their car and in normal pace he came home but found that his number plate is missing.
33. Police after investigation has arrested Respondent No. 1 in FIR No. 363/09 under [SECTION] A of [ACT].
34. This is sufficient to return a finding of rash and negligent driving against Respondent No.1 . Offending vehicle was also seized and released on superdari to its owner i.e. Respondent No. 2.
35. Respondent No. 1 has not entered in the witness box to explain how the accident had taken place. He has not shown that the accident was for reasons other than his negligence.
36. In [PRECEDENT], the Hon'ble Gawhati High Court has observed as under: "In deciding a matter tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. 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 AIR No. 26/R/11 Smt. [ENTITY] & Ors. v. Sh. [ENTITY] & Ors. Page No. 7 of 14 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"
37. In the case of [PRECEDENT] 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."
9. The report in [ENTITY] (Supra) was relied on by the Supreme Court in its latest judgments in [PRECEDENT] and [PRECEDENT]."
AIR No. 26/R/11 Smt. [ENTITY] & Ors. v. Sh. [ENTITY] & Ors. Page No. 8 of 14
38. In the case of [PRECEDENT], the Hon'ble High Court of Delhi has held that: "The last contention of the appellant insurance company is that the respondentsclaimants 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 [CASE NUMBER], 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."
39. This case was noticed by Hon'ble High Court of Delhi in the case titled as [PRECEDENT] where adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to AIR No. 26/R/11 Smt. [ENTITY] & Ors. v. Sh. [ENTITY] & Ors. Page No. 9 of 14 corroborate his defence taken in the written statement. It was noted that there is nothing on record to show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.
40. Therefore, this issue is decided in favour of petitioners and against the respondents. ISSUE NO. 2:
41. Age of the deceased as per post mortem report prepared at Safdarjang Hospital is 69 years. There is no evidence that deceased was younger or older than 69 years. Therefore, for deciding the compensation payable to the LRs of the deceased his age shall be treated as 69 years.
42. There is no proof of income. There is no proof of educational qualifications of the deceased. Therefore, case will be decided on the basis of minimum wages payable to an unskilled workman on 22.08.09 which were Rs. 3,953/ per month.
43. There are at least two dependents of the deceased i.e. widow and the unmarried daughter. Therefore, 1/3rd will have to be deducted for personal expenses of the deceased. Once 1/3rd is deducted, the loss of dependency for the family will be Rs. 2,642/ per month or Rs. 31,704/ p.a.
44. Applying a multiplier of 5 on the basis of judgment of Hon'ble Supreme Court in the case of [PRECEDENT], the Loss of Dependency would work out to be Rs. 1,58,520/ (i.e. Rs. 31,704/ x 5).
45. In the case of New India Assurance Co. Ltd. v.
AIR No. 26/R/11 Smt. [ENTITY] & Ors. v. Sh. [ENTITY] & Ors. Page No. 10 of 14 [ENTITY], [CASE NUMBER], dated 08.08.12, the Hon'ble High Court of Delhi has held that when full compensation is awarded towards loss of dependency, only a nominal sum is to be awarded towards loss of love and affection.
46. It was further held that the trend of the Hon'ble High Courts and the Hon'ble Supreme Court is to grant a sum of Rs. 25,000/ under the head of loss of love and affection.
47. Such a sum was granted by the Hon'ble Supreme Court in [PRECEDENT] and in [PRECEDENT] towards love and affection.
48. Therefore, for Loss of Love and Affection, petitioners are awarded a compensation of Rs. 25,000/.
49. Besides this, Petitioner No. 1 widow is awarded a compensation of Rs. 10,000/ towards Loss of Consortium.
50. For Loss of Estate, petitioners are awarded a sum of Rs. 10,000/ and for Cremation Charges, they are awarded a compensation of Rs. 10,000/.
51. Therefore, total compensation payable to the petitioners would be Rs. 2,13,520/ which will be paid with interest @ 7.5% p.a. (this is the rate of interest which is being awarded by the Hon'ble High Court of Delhi at present) from the date of filing of this claim petition which is 23.09.09 till its deposit in the Tribunal.
52. Next question is which respondent is liable to pay this compensation to the petitioners.
AIR No. 26/R/11 Smt. [ENTITY] & Ors. v. Sh. [ENTITY] & Ors. Page No. 11 of 14
53. Admittedly Respondent No. 1 was not having a driving license on the date of accident. Respondent No. 1 had a driving license which had lapsed on 17.10.08 and was got renewed on 01.12.09. Therefore, on the date of accident there was no driving license.
54. Resultantly, in the first instance compensation will be paid by insurance company but with liberty to insurance company to recover the same from Respondent No. 1 and 2 by taking steps as per law.
55. Therefore, compensation is to be paid by insurance company which be paid within 30 days from today under intimation to the petitioners by registered post.
56. Following directions are given for apportionment of compensation: (1) 40%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Petitioner No. 1 widow of the deceased. This payment shall be deposited by insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c. [ENTITY]. Out of this, 10% shall be released in her Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in an FDR for a period of 3 years. Monthly interest will be credited in her Saving Bank Account regularly.
(2) 10% out of the total awarded compensation with proportionate interest shall be payable in favour of petitioner no. 2, son of the deceased. This payment shall be deposited by insurance company directly with State Bank of India, AIR No. 26/R/11 Smt. [ENTITY] & Ors. v. Sh. [ENTITY] & Ors. Page No. 12 of 14 Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c. [ENTITY]. This compensation will be kept in an FDR for a period of 3 years. Monthly interest will be credited in his Saving Bank Account regularly.
(3) 40%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Petitioner No. 3 unmarried daughter of the deceased. This payment shall be deposited by insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c. [ENTITY]. Out of this, 10% shall be released in her Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in an FDR for a period of 3 years. Monthly interest will be credited in her Saving Bank Account regularly.
(4) 10% out of the total awarded compensation with proportionate interest shall be payable in favour of petitioner no. 4, married daughter of the deceased. This payment shall be deposited by insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c. [ENTITY]. This compensation will be kept in an FDR for a period of 3 years. Monthly interest will be credited in her Saving Bank Account regularly.
(5) All the original FDRs shall remain with the bank. Only copies thereof will be given to the petitioners. However, pass book will be given to the petitioners. No cheque book shall be issued to the petitioners.
(6) No loan or advance will be given against these deposits.
AIR No. 26/R/11 Smt. [ENTITY] & Ors. v. Sh. [ENTITY] & Ors. Page No. 13 of 14 (7) FDRs shall not be prematurely encashed without leave of this Tribunal.
(8) Petitioners shall cooperate with the bank by providing requisite documents and by completing required formalities for opening Saving Bank and FDR Accounts.
(9) Petitioners shall be at liberty to get their Saving Bank Account and FD Accounts transferred to any branch of SBI of their choice if so desired.
57. Copy of this order be given dasti to all the parties.
58. A copy of this order be also sent to the State Bank of India, Dwarka Courts, New Delhi.
59. File be consigned to the Record Room.
Announced in the Open Court.
On the 23rd day of January, 2013 ([ENTITY]) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
AIR No. 26/R/11 Smt. [ENTITY] & Ors. v. Sh. [ENTITY] & Ors. Page No. 14 of 14