1 IN THE COURT OF MS [ENTITY] JUDGE MACT DELHI SUIT NO 143/06, 149/06 and 145/06 1 Shri [ENTITY] son of Shri Ram Narayan 2. Smt [ENTITY] w/o Shri Madan lal both resident of R-20-21, Mangolpuri Delhi Petitioner Versus 1. [ENTITY] son of Shri Kamal Singh R/o 24, Suraj Nagar behind Akash Cinema Azadpur Delhi Second address Village Juran Chhapra, Road no 3, PS Chhapra District Muzaffarpur Bihar 2. Shri [ENTITY] son of Shri Sita Ram Gupta r/o 17/93, Than Singh Nagar, Sarai Rohilla Delhi 3 [ENTITY] DO-19, Laxmi Tower C-1/3, Neini Wala Bagh Azadpur Commercial Complex Delhi Respondents 2 Suit No : 146/06 Shri Madan lal son of Shri RamNarayan R-20, Mangolpuri, Delhi Versus 1. [ENTITY] son of Shri Kamal Singh R/o 24, Suraj Nagar behind Akash Cinema Azadpur Delhi Second address Village Juran Chhapra, Road no 3, PS Chhapra District Muzaffarpur Bihar 2. Shri [ENTITY] son of Shri Sita Ram Gupta r/o 17/93, Than Singh Nagar, Sarai Rohilla Delhi 3 [ENTITY] DO-19, Laxmi Tower C-1/3, Neini Wala Bagh Azadpur Commercial Complex Delhi Respondents Suit no : 145/06 [ENTITY] w/o Shri [ENTITY] r/o R20-21, Mangolpuri, Delhi Petitioner Versus 3 1. [ENTITY] son of Shri Kamal Singh R/o 24, Suraj Nagar behind Akash Cinema Azadpur Delhi Second address Village Juran Chhapra, Road no 3, PS Chhapra District Muzaffarpur Bihar 2. Shri [ENTITY] son of Shri Sita Ram Gupta r/o 17/93, Than Singh Nagar, Sarai Rohilla Delhi 3 [ENTITY] DO-19, Laxmi Tower C-1/3, Neini Wala Bagh Azadpur Commercial Complex Delhi Respondents JUDGMENT
1. By this judgment I shall dispose off three cases bearing no 143/06, 145/06 and 146/06 as they have arisen out of the same FIR bearing no 504/05 of PS Paschim Vihar.
2. Brief facts leading to the present judgment cum award are that on 11.06.05 at about 1.10 a.m. [ENTITY] along with her parents [ENTITY] and [ENTITY] and her sister [ENTITY] was returning to her house from Chowkhandi, Tilak Nagar by motor cycle bearing no DL-4SAJ- 3522. When they reached at red light Bhairo Enclave Outer Ring Road in the meanwhile offending vehicle bearing no. HR-38 T-5718 being driven by respondent no 1 in rash and negligent manner came from Jawalaheri Market and hit motorcycle with a great force and due to impact they fell down on the road and [ENTITY] [ENTITY] received fatal injuries whereas [ENTITY] and [ENTITY] received injuries.
3. Respondent no 1 and 2 have filed written statement in which it is stated that alleged accident has neither been caused by the respondent no 1 or by the vehicle of the respondent no 2. Police has lodged the present FIR against the respondent no 1 on the behest of the petitioner with the sole motive to extract the money. It is submitted that the claim of petitioner is highly exaggerated and exhorbitent and petitioner is not entitled to any claim as prayed for.
4. Respondent no 3 ie insurance company has filed the written statement. It is stated that the amount claimed by petitioner is excessive, exorbitant. Insurance company denied all the liabilities as the insured vehicle was being driven by a person without permission or authority of the insured and the said vehicle was used contrary to the terms of the insurance policy, without a valid permit and was being driven without holding a proper and valid driving license. It is stated that offending vehicle was insured vide cover note no 360800/31/04/6300002308 valid for the period from 26.08.04 to 25.08.05.
5. Out of pleadings of the parties, the following issues were framed by my Ld Predecessor :-
1 Whether [ENTITY] suffered fatal injuries on 11.06.05 due to rash and negligent driving of the vehicle bearing no HR-38T-5718 by respondent no 1? (in [CASE NUMBER]).
2. Whether petitioner [ENTITY] and [ENTITY] received injuries on 11.06.05 due to rash and negligent driving of the vehicle bearing no HR-38T-5718 by respondent no 1 ?(In [CASE NUMBER])
2. Whether the petitioner is entitled for any compensation, if so, to what amount and from whom?
3 Relief.
6. The [CASE NUMBER] titled as [ENTITY] vs [ENTITY] is treated as main case and evidence was recorded in that suit. In evidence Petitioner [ENTITY] has examined himself as PW1 who has narrated the allegations of petition and relied upon the documents from ExPW1/1 to ExPW1/65. He has also proved the copy of election I card of himself and his wife as ExPW1/66 and ExPW1/67 respectively. Petitioner [ENTITY] has been examined as PW2. She has also narrated the allegations of petition.
7. Respondent no 3 has examined Sh [ENTITY], record clerk from Motor License Office, North Zone as R3W1 who has stated that as per the record the license bearing no C01052000142788 pertains to one Shri [ENTITY] and the same was issued on 17.5.05 and was valid upto 16.5.03 and attested copy of the same is Ex3W1/1. The said license is not issued in the name of Shri [ENTITY], respondent no 1.
8. Respondent no 3 has also examined Shri [ENTITY], Sr Assistant from insurance company has proved the office copy of the notice under [SECTION] [ACT] as ExR3W2/1, postal receipt are ExR3W2/2 to ExR3W2/4, certified copy of the policy is ExR3W2/6,
9. Respondent no 1 and 2 have not examined any witness hence their evidence was closed.
10. Thereafter the matter was listed for final arguments as the evidence of the parties had already been closed. Learned counsel for the parties had advanced arguments.
11. I have considered the evidence led by the petitioner and the other material on record. After considering the same my issue wise findings are as under:
ISSUE NO 1
12. The case of the petitioner is that on the intervening night of 10/11.06.05 petitioner [ENTITY] along with his wife [ENTITY] and daughter namely [ENTITY] and [ENTITY] was coming to their home at Mangolpuri from Chokhandi Tilak Nagar by motorcycle bearing no DL-4SAJ-3522. At about 1.10 a.m. When they reached at Red Light Bhairo Enclave, Outer Ring Road he was crossing the chowk towards Mangolpur from Vikaspuri side then all of sudden offending vehicle bearing no. HR-38T- 5718 which was being driven by respondent no 1 in rash and negligent manner came from Jawalaheri side and hit into the right side of motorcycle by its front portion. As a impact motorcycle fell down on the road and due to which petitioner [ENTITY] and [ENTITY] received grievous injuries and [ENTITY] received fatal injuries. The petitioner has placed on record the attested copies of criminal case. FIR was recorded on the statement of petitioner [ENTITY] in which respondent no 1 has been made as accused. Post Mortem report of [ENTITY] has also been placed on record. From the perusal of post mortem report it is clear that [ENTITY] received fatal injuries suffered by her in the road side accident. Certified copies of MLC no E/45002 of [ENTITY] and MLC no E/44997 Kanta Ex also prove the injuries suffered by them in RTA. Hence the testimony of PW1 [ENTITY] coupled with the documents clearly shows that petitioner suffered injuries on 10/11.06.05 due to rash and negligent driving of offending vehicle on the part of respondent no
1. Hence issue no 1 is decided in favour of the petitioners in all cases.
ISSUE NO 2
13. It is the case filed by parents of deceased [ENTITY] who was minor child of 4 years only. Death of deceased has been proved by post mortem . Respondent no 1 and 2 have not led any evidence. Hence there is no contrary evidence to the evidence led by petitioner. Loss of dependency
14. I have considered the submissions and arguments of Ld counsel for parties.
15. In case [PRECEDENT] while considering the death of a minor child Hon'ble Supreme Court has held that:
"In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievement in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation.
16. Hon'ble Supreme Court has also relied upon the conclusion in the case of [PRECEDENT], wherein it was observed by the Hon'ble Supreme Court that:
'It has to be kept in view that the Tribunal constituted under the Act as provided in [SECTION] is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be "just and reasonable". It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is to not expected to be a windfall for the victim. Statutory provision clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit, but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculation. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression, "which appears to it to be just" a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non arbitrary, if it is not so it cannot be just".
17. In case of [PRECEDENT] delivered by Hon'ble Mr Justice [ENTITY] of Hon'ble High Court of Delhi it was held that in case of death of minor child below 15 years, as per second schedule appended to [SECTION] of [ACT] notional income should be taken as Rs15,000/- per annum to which multiplier of 15 is to be taken as provided in second schedule appended to [SECTION] A of [ACT] therefore compensation comes out to be Rs2.25 lakhs. On this Hon'ble High Court has awarded Rs50,000/- on the loss of company of child and for pain and suffering , therefore total amount of Rs2.75 lakh was awarded by Hon'ble High Court of Delhi.
18. After considering judgment as mentioned above I am of the opinion that when specifically notional income has been provided in second schedule appended to [SECTION] A of [ACT], the same should be considered for computing the loss of dependency. Thus the notional income of deceased in the present case (age being four years only) has to be taken as Rs15,000/- per annum and in second schedule itself multiplier of 15 has been provided for the deceased below 15 years. Therefore total loss of dependency will be Rs2.25 lakhs as provided in the judgment of Hon'ble High Court of Delhi.
19. Apart from that petitioners are also entitled to loss of Love of affection to the tune of Rs25,000/- Rs 15,000/- is awarded on account of loss to estate of deceased & Rs.10,000/- are awarded for funeral expenses. Hence total amount awarded in petition is Loss of dependency = :Rs2,25,000/-
Loss of Love and affection :Rs25,000/- Funeral Expenses :Rs10,000/- Loss to estate :Rs 15,000/- Total compensation : Rs2,75,000/-
Interim award of Rs50,000/- has already been awarded to petitioner hence total compensation remains Rs2,75,000/- minus Rs50,000/- which comes to Rs2,25.000/-. Out of this amount petitioner no 1 and 2 are entitled to 50% of the total compensation. Out of the compensation awarded a sum of Rs25,000/- be given in cash to petitioner no1 and 2 and remaining amount be deposited in the form of FDR with some nationalized bank for the period of three years without the facility of advance/loan/withdrawal. However petitioner will be entitled to monthly or quarterly interest as applicable. Claim in [CASE NUMBER] titled as [ENTITY] vs [ENTITY]
20. Petitioner in the present case has suffered serious injuries. He suffered fracture of shaft femur. He was admitted in Sanjay Gandhi Memorial Hospital from 11.06.05 to 18.06.05 . He was again admitted in Apollo Hospital from 18.06.05.
21. After considering the facts and circumstances as detailed above and the evidence led by the parties I am of the opinion that the petitioner is entitled to compensation as follows:
Medical Expenses
22. The petitioner has suffered grievous injuries. He has suffered fracture of shaft femur (right). Thre is no record of treatment after 27.06.05 except treatment dt 20.09.05 which is ExPW1/22. But in this prescription no medicine was prescribed. No test was mentioned. There is no subsequent treatment. ExPW1/34 to ExPW1/36 are the receipts of the bill ExPW1/33 which has already been calculated hence only one time this amount is to be taken for computation. The bills ExPW1/57 and ExPW1/58 are without prescription of any doctor. The petitioner has placed on record the bills for the sum of Rs8294/-. Hence I award a sum of Rs8500/- to petitioner [ENTITY] for medical expenses.
Pain and sufferings
23. The petitioner has suffered serious/grievous injuries. He suffered fracture of right shaft femur. But no duration of treatment has been proved by petitioner. However considering the nature of injury I award a sum of Rs25,000/- to petitioner for pain and sufferings.
Loss of income
24. In the petition the petitioner has stated that he is self employed and doing the work as Waist cloth cutting and earning Rs8,000/- per month. But no document in this respect has been filed by petitioner. Hence only Minimum Wages as per [ACT] can be considered. In the absence of complete treatment record I award lump- sum Rs10,000/- to petitioner on account of loss of income, taking into account the fact that due to fracture at least for three months he would not have been able to work.
Conveyance and Special diet
25. In the evidence the petitioner himself appeared as PW1. He has stated that he has spent Rs5,000/- on special diet and Rs5,000/- on conveyance. But no document has been placed on record to prove this expenditure. But considering the nature of injury I award Rs5,000/- for special diet and conveyance. RELIEF
26. In view of my findings on issue no 1 and 2 petitioner is awarded following compensation:
Medical Expenses : Rs8,500/- Pain and suffering : Rs25,000/- Loss of income : Rs10,000/- Conveyance and special diet: Rs5,000/- Total Compensation : Rs48,500/-
27. Hence the petitioner is awarded compensation of Rs48,500/- with 6% per annum interest from the date of filing of the petition ie 16.08.05 till its realization. Out of this amount a sum of Rs20,000/- be given in cash and remaining amount be deposited in the form of FDR with some nationalized bank for three years without the facility of advance/loan/withdrawal. However petitioner will be entitled to monthly or quarterly interest as applicable.
Claim in [CASE NUMBER]
28. Petitioner in the present case has suffered serious injuries. She has suffered fracture of left [ENTITY] and swelling lower lip and chin. The MLC is ExPW2/1 dt 11.06.05. Subsequent OPD card of SGM is dt 23.09.05.
29. After considering the facts and circumstances as detailed above and the evidence led by the parties I am of the opinion that the petitioner is entitled to compensation as follows:
Medical Expenses
30. The petitioner has suffered grievous injuries. She has suffered fracture of [ENTITY] (left). The MLC is ExPW2/1. The petitioner has filed bills for the sum of Rs1070/- hence I award Rs1200/- to petitioner on account of medical expenses. Pain and sufferings
31. The petitioner has suffered serious/grievous injuries. She has suffered fracture of [ENTITY]. No admission was required for treatment. Follow up treatment filed by petitioner is not regular. However considering the nature of injury I award a sum of Rs10,000/- to petitioner for pain and sufferings. Loss of income
32. In the petition the petitioner has stated that she is self employed and working as tailor and was earning Rs5,000/- per month. But no document in this respect has been filed by petitioner. Even otherwise it is difficult to believe that with injury in lower jaw she was not able to perform her house hold work, other work of tailoring, particularly in the light of the fact that no bed rest was prescribed to her. Thus, I am of opinion that there was no reason for any loss of income to the petitioner. However in the interest of justice as a token, sum of Rs3,000/- is awarded to petitioner under this head.
Conveyance and Special diet
33. In the evidence the petitioner herself appeared in witness box. Since she suffered injury in lower jaw, it must have been difficult for her to eat properly the food as chewing would have become difficult hence I award Rs5,000/- on special diet and conveyance.
RELIEF
34. In view of my findings on issue no 1 and 2 petitioner is awarded following compensation:
Medical Expenses : Rs1,200/- Pain and suffering : Rs10,000/- Loss of income : Rs3,000/- Conveyance and special diet: Rs5,000/- Total Compensation : Rs19,200/-
35. Hence the petitioner is awarded compensation of Rs19,200/- with 6% per annum interest from the date of filing of the petition ie 16.08.05 till its realization. Entire amount be given in cash to petitioner.
36. Respondent no 3 has examined Shri [ENTITY], Senior Assistant for insurance company as R3W2 who has stated that license was not issued in the name of respondent no 1 and liceence issued to respondent no 1 was fake. In [PRECEDENT] it has been held by Hon'ble Supreme Court that unless it is known by the owner of the vehicle that driver concerned is holding fake license the owner cannot be held liable. The insurance company has no where proved on record that the owner of the vehicle in question was aware of the fact that respondent no 1 was not holding a subsisting valid license on the date of accident. This becomes more important in the light of fact that renewal of license from Mujjafar Pur Authority is valid. There is no mechanism with owner of vehicle to inquire about the genuiness of the driving licence of driver except to see the face of driving licence and to believe it to be genuine. No negligence or malafide on the part of owner is either alleged or proved . Hence I am of the opinion that insurance company is liable to make the payment of compensation to petitioner being insurer of offending vehicle. However the insurance company is allowed to recover the amount of compensation from the respondent no 1 and 2. This issue no 2 is decided accordingly.
37. Respondent no 3 is directed to place on record the cheque of compensation within 30 days. Copy of the order be placed in [CASE NUMBER]. File be consigned to Record Room.
ANNOUNCED IN ([ENTITY]) OPEN COURT JUDGE MACT DELHI TODAY DATED 07.03.2007