-1- IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT & SESSIONS JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI (MACT Case no. 923/10/08) 1) Smt. [ENTITY] W/o Late Sh. [ENTITY] (first wife of deceased) 2) [ENTITY] D/o Late Sh. [ENTITY](7 years daughter of deceased) 3) [ENTITY] D/o Late Sh. [ENTITY](1 year daughter of deceased) 4) Smt. [ENTITY] W/o Late Sh. Alamudin Shekh (mother of deceased) 5) [ENTITY] 2nd W/o Late Sh. [ENTITY] (second wife of deceased) 6) [ENTITY] S/o Late Sh. [ENTITY] (3 years son of deceased) 7) [ENTITY] D/o Late Sh. [ENTITY] (7 month daughter of deceased) All R/o 124, Barharwas, P.S. Barharwa, P.O. Barharwa, Distt.-Sahibganj-81601 Petitioners/Claimants Versus 1) [ENTITY] S/o Sh. Baldev Parsad (Driver) R/o Village Bela Pur, Pir Nagra Thana Billor, Jilla Saharsa, Bihar 2) [ENTITY] S/o Sh. Jabber Singh (Owner) R/o Gali No. 15, Wazirabad Extension, New Delhi-110084 3) [ENTITY] (Insurer) 124, Connaught Circus, Level-IV, Tower-II, Jeevan Bharti Building, New Delhi-110001 Respondents Date of institution 08.08.2008 Date of decision 19.04.2012 (Application u/s 166 and 140 of [ACT] for grant of compensation) -2- JUDGMENT:
As per averments made in the petition, on 10.07.2008 at about 5.30 am Sh. [ENTITY] (herein after referred to as deceased) aged about 34 years was on duty as security guard and was standing beside the under construction puliya at GTK Road and in front of Singhu Village, in the meantime one truck dumper no. HR-38H-1409 came at a very high speed from the side of Delhi without taking care of the traffic rules without blowing any horn hit the victim. Due to great blow the truck dumper fell into the pit alongwith the victim and due to this accident [ENTITY] died on the spot. It is further stated that this accident was done by the rash and negligent act done by the driver of the offending truck. After the accident, the victim was taken to the hospital, where he was declared dead by the doctors. A criminal case under section [SECTION] [ACT] was registered against respondent no. 1 vide FIR No. 160/08 in police station Alipur.
Petitioner no. 1 being first wife of the deceased, petitioners no. 2 & 3 being minor children from first wife, petitioner no. 4 being mother, petitioner no. 5 being second wife and petitioner no. 6 & 7 being minor son and daughter of the deceased from second wife, alleged that the deceased was working as a security guard under a reputed firm namely BJCL Company Ltd., NHAI Jindpur, Delhi and was earning Rs. 6,000/- per month. They claimed sum of Rs. 20 lakhs as compensation alongwith interest @18% p.a. from respondents no. 1 to 2 being driver, owner and insurance company of the offending vehicle jointly and severally.
Respondents no. 1 and 2 did not appear despite service, so were proceeded ex-parte vide order dated 07.11.2009. Respondent no. 3 insurance company admitted that offending truck dumper was insured with it but it tried to avoid its liability on some routine technical grounds. It is stated that the claim petition of the petitioners is not maintainable as the claimants are neither the legal heirs nor the dependents on the deceased. Moreover, the claimants have not filed any documentary proof to prove that the petitioners are legal wives and claimants are legal representatives of the deceased. It is further stated that as per the averments made in the petition, the alleged accident was caused due to negligence of the deceased himself.
Petitioner no. 1 & 5 being first and second wife of the deceased during pendency of the case were paid interim compensation of Rs. 50,000/- along with interest u/[SECTION] of [ACT] on account of no fault liability. On the basis of pleadings of the parties, following issues were framed on 26.11.2009 by my ld. Predecessor:
1) Whether the deceased Sh. [ENTITY] s/o Late Sh.
[ENTITY] expired due to the fatal injuries received in the roadside accident occurred on 10.07.2008 at about 5.30 am at under construction puliya bus stand near GTK Road Singhu Border, Delhi due to rash and negligent driving of R-1/driver of offending vehicle no. HR-38H-1409 (Truck)? OPP
2) Whether the petitioners are entitled to compensation as prayed for, if so to what extent and from which of the respondents? OPP
3) Relief.
In order to prove their case, petitioners examined Smt. [ENTITY] first wife of the deceased as PW-1 and eye witness Sh. [ENTITY] as PW-2. PW-1 Smt. [ENTITY] in her examination tendered her affidavit in evidence as Ex.PW1/A, her Election I-card as Ex.PW1/1, salary certificate of the deceased as Ex.PW1/2, copy of marriage certificate as Ex.PW1/3 and the certified copies of criminal case record as Ex.PW1/4 (collectively 25 sheets). In her cross examination, PW-1 stated that her husband [ENTITY] was working as a security guard in the company. She cannot tell where the company was situated. Her husband used to earn Rs. 6,000/- p.m. and used to give her Rs. 5,000/- for household expenses. She was residing in the village. He used to sent her Rs. 5,000/- through some person visiting the village from Delhi. She further stated that the second wife of her husband [ENTITY] and her children are residing with her. Petitioners further examined PW-2 Sh. [ENTITY], who stated that he is the eye witness of the accident. In cross examination, PW-2 stated that his statement was not recorded by the police. He had not told the police that he had witnessed the accident. He had no documentary proof to show that he was working with BJCL Co. Ltd. The accident took place with a dumper bearing No. 1409, which belong to Haryana State. The offending vehicle was coming from Delhi side. The speed of the offending vehicle was not less than 80 km/hour. The deceased was standing on the corner of the small bridge when the accident took place. Some persons had collected at the spot and took the deceased to the hospital.
Respondent no. 3 [ENTITY] examined its official Sh. [ENTITY] as R3W1, who stated that they got issued the notices u/[SECTION] [ACT] to the owner and driver of the vehicle No. HR-38H-1409. He proved the copy of notices as Ex.R3W1/1 & Ex.R3W1/2 and the postal receipts as Ex.R3W1/3 & Ex.R3W1/4. R3W1 also brought the attested true copy of policy no. 360202/31/08/6300000573 in respect of the aforesaid vehicle and proved the copy of policy as Ex.R3W1/5 (collectively 2 sheets). He further stated that the driver of the offending vehicle was not holding any D/L at the time of accident as their investigator had visited the house of the owner and he did not produce any D/L of the driver. He further stated that there is breach of terms and conditions of the insurance policy, so the insurance company is not liable to pay any compensation to the petitioners. In the cross examination conducted by counsel for petitioner, he denied the suggestion that the driver of the offending vehicle was having valid D/L. Respondent no. 3 Insurance Co. further examined Sh. [ENTITY], UDC from Jalpaiguri Collectorate (MVD Department) as R3W2. He stated that he has been authorized by RTO, Jalpaiguri to produce the summoned record in this case. He proved the authorization letter as Ex.R3W2/1 and the certified copy of summoned record as Ex.R3W2/A. He further stated that as per report, [CASE NUMBER] was not issued in the name of driver [ENTITY] and it was issued in the name of [ENTITY].
I have heard ld. counsel for the parties and gone through the record. My decision on the above mentioned issues is as under:
Issue no. 1:-
The onus of proving this issue was upon the petitioners. The principles to be followed in the case of motor accident claim have been laid down by Hon'ble Guwahati High Court in case cited as [PRECEDENT] wherein it is held that:
"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 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.
In [PRECEDENT]. [PRECEDENT], Mr. Justice [ENTITY] and Mr. Justice [ENTITY], Division Bench of Hon'ble Supreme Court has observed as under:-
"In Road accidents are one of the top killers in our country, especially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
PW-2 an eye witness of the accident in his affidavit of evidence disclosed how and in which manner accident took place. He is the eye witness of the accident, but the FIR was not registered on his statement. He specifically blamed driver of truck dumper in causing the accident in question in rash and negligent manner which hit the deceased, as a result of which the deceased fell down into the pit. Due to the said accident, the deceased's head got crushed, who died on the spot. He further stated that the accident took place in his presence and witnessed the same. Investigating officer of the criminal case after investigation found that the accident took place due to rash and negligent driving of the offending truck dumper by respondent no. 1 and charge sheeted him. Certified copy of the charge sheet is on record which confirms the deposition of PW-2. There is no dispute that respondent no. 1 was arrested by the police and offending truck dumper was seized which was got released lateron on superdari through court.
Respondents no. 1 and 2 did not cross examine the eye witness PW-2 effectively or to lead any of their evidence which draws an adverse inference against them and leads to the conclusion that version of eye witness regarding the manner of accident is correct. It is not the case of the respondents no. 1 and 2 that they had made any complaint to any authority against the alleged false implication of respondent no. 1 in criminal case or there was any enmity with the legal heirs of deceased or eye witness or IO which facilitated them to involve him in the false case. I could not find from the cross examination of PW-2 eye evidence which point out that deceased was an instrumental or facilitator in causing the accident so possibility of existence of any contributory negligence is also ruled out. Hence it exonerates negligence of the deceased. The statement of PW-2 regarding the manner of accident is unimpeachable and trustworthy. Accordingly, it is held that the accident had taken place with the offending truck dumper bearing no. HR-38H-1409 being driven by respondent no. 1 in rash and negligent manner. In view of the above discussions, this issue is decided in favour of petitioners and against the respondents.
Issue no. 2:-
Deceased had left behind his two wives, four minor children and mother. He was aged about 34 years at the time of accident as per the petition. It is alleged that the deceased deceased was working as a security guard under a reputed firm namely BJCL Company Ltd., NHAI Jindpur, Delhi and was earning Rs. 6,000/- per month but there is no proof of his income on record. PW-1 first wife of the deceased placed on record salary certificate of the deceased as Ex.PW1/2 showing his salary at Rs. 6,000/- p.m. but the petitioners have not examined the employer of the deceased. In the absence of any proof of income of the deceased, there remains no other option except to take the help of schedule of minimum wages to presume the monthly income of the deceased by treating him falling in unskilled worker and as per minimum wages chart, a unskilled person was presumed to be earning sum of Rs. 3,633/- per month as applicable on 01.02.2008. Accordingly, I am of the view that the amount of Rs. 3,633/-
per month has to be taken into consideration while counting monthly income of the deceased.
Deceased expired on 10.07.2008 before reaching the hospital and there is no expenses incurred on his medical treatment. In the petition, age of the deceased has been given as 34 years. PW-1 first wife of the deceased also stated in his affidavit in evidence about the age of the deceased at the time of death as 34 years. But as per the postmortem report of the deceased, he was 36 years of age at the time of his death, which is to be taken as his age at the time of accident. Hence in view of the judgment of Supreme Court given in [ENTITY] vs. DTC 2009 ACJ 1298, multiplier of 15 has to be applied upon the income of the deceased.
Delhi High Court in [PRECEDENT] and [PRECEDENT] decided on 25-8-2009 held that keeping in view the trend of increase of minimum wages from time to time and rises in price index and inflation, it can be said that minimum wages would get almost double over a period of next 10 years and thus future prospects should be given in minimum wages also. Thus applying the formula given in these judgments, the monthly income of the deceased can be held as Rs. 5,449.50 paisa (Rs. 3,633/- + 50%).
Deceased had left behind his two wives, four minor children besides his mother. Thus as per the judgment of Hon'ble Supreme Court given in [ENTITY]'s case, by treating seven dependents upon the deceased, the deduction of 1/5th from income of deceased has to be made upon his personal expenses. Hence after deducting 1/5th of the amount from monthly income of Rs. 5,449.5 paisa, the net amount of dependency per month comes to Rs. 4,359.8 paisa. Accordingly, in this case, loss of dependency is assessed at Rs. 7,84,764/- (Rs. 4,359.8 x 12 x 15).
PW-1 in her affidavit in evidence stated that she has spent Rs. 25,000/- on funeral and religious ceremonies of the deceased, but she has not brought on record any document regarding expenses incurred on cremation and last rites of the deceased. It is a judicial noticeable fact that normally some expenses are incurred upon cremation and last rites of deceased. Hence, I deem it proper to grant lump sum Rs. 10,000/- as funeral charges.
Petitioners are also entitled to Rs. 1,40,000/- (Rs. 20,000/- to each petitioner) as loss of estate and another sum of Rs. 40,000/- (Rs. 20,000/- each to petitioner no. 1 and petitioner no. 5) towards loss of consortium in view of the decision of Supreme Court given in [ENTITY]'s case. Another sum of Rs. 1,40,000/- (Rs. 20,000/- to each petitioner) towards loss of love and affection as well as loss of company of the deceased is awarded to all the petitioners after relying upon the judgment of Hon'ble Delhi High Court in case Sajha vs. [ENTITY] 2010 ACJ 627.
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Counsel for the respondent no. 3 insurance company argued that the driving licence produced by the respondent no. 1 was fake. In support of his contention he has placed the judgment [PRECEDENT] and [ENTITY] vs. Laxmi Narain Dhut, (2007) 2 SCC (Cri) 142. Certified copy of criminal case record shows that the respondent no. 1 was arrested by the police, who had produced his driving license issued by Jalpaiguri Licensing Authority, West Bengal. R3W2 has proved the report of this authority Ex. R3W2/2 (in the statement given as Ex.R3W2/A) which shows that the driving license of respondent no. 1 was not issued by this authority but was issued to some [ENTITY]. So it is held that the driving license of respondent no. 1 is a forged one. Respondent no. 1 & 2 had chosen not to contest the case and did not file written statement and were proceeded exparte. Even thereafter they never appeared in the court to challenge the report Ex.R3W2/2. Respondent no. 3 insurance company had issued notices under [SECTION] [ACT] Ex.R3W1/1 & Ex.R3W1/2 to respondent no. 1 & 2. The witness of insurance company R3W1 during his statement stated that the driver of the offending vehicle was not holding any D/L at the time of accident as their investigator had visited the house of the owner and he did not produce any D/L of the driver. Even respondent no. 1 & 2 did not appear even after receipt of notices under [SECTION] [ACT] nor produced any other driving license of driver i.e. respondent no. 1. There is no rebuttal of the report of concerned Licensing Authority, so it is held that respondent no. 1 was not having any valid driving license at the time of accident and his driving license given to police is found fake. In such situation, due to breach of terms of insurance policy Ex.R3W1/5, respondent no. 2 owner of the vehicle becomes liable to pay the compensation amount and respondent no. 3 can be given recovery rights.
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After considering the merits of the case and findings given above, petitioners are entitled to get the following total compensation from respondent no. 3 insurance company at first instance which is given recovery rights to get the same recovered lateron from the owner of the offending truck dumper i.e. respondent no. 2:
In view of the above discussions, this issue is decided in favour of petitioners by holding that they are entitled to get the following total compensation from the respondent no. 3 who is given recovery rights to get the same recovered lateron from respondent no. 2:
1) Loss of dependency Rs. 7,84,764/-
2) Funeral charges Rs. 10,000/-
3) Loss of estate Rs. 1,40,000/-
4) Loss of consortium Rs. 40,000/-
5) Loss of love and affection etc. Rs. 1,40,000/-
Total Rs. 11,14,764/-
Record shows that interim compensation of Rs. 50,000/- is already paid to the petitioners, so this amount is liable to be deducted from the compensation amount assessed above. Hence net amount now payable to the petitioners is Rs. 10,64,764/-. Petitioners shall be entitled to interest at the rate of 9% p.a. on this amount from the date of institution of the petition i.e. 08.08.2008 till realization, as per the judgment titled as [PRECEDENT].
Issue no. 3 (Relief):-
On the basis of findings given above, present petition is disposed off. Respondent no. 3 insurance company is directed to pay at the
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first instance sum of Rs. 10,64,764/- to the petitioners along with interest at the rate of 9% p.a. from 08.08.2008 till this amount is fully realized. After making this payment, it can get the same recovered from respondent no. 2 owner of the offending truck dumper by filing an execution application.
It is further ordered that out of the compensation amount, Rs. 2,00,000/- each be paid to the petitioner no. 1 and petitioner no. 5 respectively (first and second wife of the deceased) which be deposited in their name in the form of [ENTITY] for a period of five years to be renewed from time to time with liberty to withdraw monthly interest on their [ENTITY]s.
It is further ordered that out of the compensation amount, petitioner no. 2, 3 & 7 being minor daughters of the deceased be paid Rs. 1,00,000/- each which be deposited in their name in [ENTITY] with liberty to get them encashed at the time of their marriage.
Petitioner no. 6 being the minor son of the deceased be paid Rs. 1,00,000/- which be deposited in his name in [ENTITY] for the period till he attain the age of majority.
A sum of Rs. 1,00,000/- be deposited in the name of petitioner no. 4 being the mother of the deceased in the form of [ENTITY] for a period of 5 years.
The remaining amount alongwith accrued interest on the award amount shall be divided equally between petitioner no. 1 & 5 to be deposited in their saving bank account with liberty to withdraw Rs. 5,000/- p.m. till this amount is exhausted.
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The [ENTITY]s be got prepared from State Bank of India, Rohini Courts branch which shall not be encashed without permission of the court. No loan or advance shall allow to be taken on these [ENTITY]s. Respondent no. 3 insurance company to pay further sum of Rs. 51,000/- as counsel fee to counsel for petitioner Sh. [ENTITY], Adv., Enrollment No. D-31/96 and Rs. 21,000/- to Ms. [ENTITY], Adv., Enrollment no. D-178/86 by preparing separate cheques in the name of counsel as per the judgment of Hon'ble Mr. Justice [ENTITY].
Respondent no. 3 insurance company is directed to prepare the separate cheques of the compensation amount as per above order. Copy of this judgment be given to petitioners and counsel for respondent no. 3 insurance company for compliance. File be consigned to record room.
Announced in the open (D.K. MALHOTRA) Court on 19.04.2012 JUDGE, MACT (OUTER-II) DELHI