1 IN THE COURT OF MS.[ENTITY] JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI SUIT NO.: 275/11 DATE OF INSTITUTION: 27.03.2010 Unique ID no. 02403C0148162010 1. Sh. [ENTITY] S/o Sh. Hari Singh Bisht 2. Smt. [ENTITY] S/o Sh. [ENTITY] Both R/o 17B, Nayay KhandI, Indirapuram, Ghaziabad, UP Petitioners. Versus 1. National Insurance Company Ltd. Jeewan Bharti Building, 4 floor, th TowerII, Connought Place, New Delhi (Insurer) 2. [ENTITY] R/o Vill. Ratanpur Syana, Bulandshahar, UP (owner) 3. Sh. [ENTITY] S/o Sh. [ENTITY] R/o Vill. Ratanpur Syana, Bulandshahar, UP (Driver) Final Arguments heard on : 07.03.2012 Award reserved for : 14.03.2012 Date of Award : 14.03.2012 AWARD 1. Vide this judgment cum award I shall decide the petition filed by the 2 petitioners against the respondents U/[SECTION] and [SECTION] of Motor Vehicle
Act, 1988 as amended up to date (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. Briefly stated the facts of the case giving rise to the petition are that on 22.09.2008 at about 11.00 AM deceased [ENTITY] was returning with her mother was coming from school and when they reached at Nayay Khand all of a sudden a tractor bearing no. UP13N4093 driven by respondent no. 3 at high speed and in a rash and negligent manner hit the deceased forcefully. It was further alleged that due to the forceful impact of the accident deceased fell on the road and her head was crashed by the wheel of the tractor and she died at the spot. It was further stated that deceased was taken to Govt. Hospital where her postmortem was conducted.
3. It was also alleged that accident took place due to the rash and negligent driving by respondent no. 3. The offending vehicle was owned by respondent no. 2 and insured with respondent no. 1 as such all the respondents were jointly and severally liable to pay compensation.
4. It was also averred that deceased was 5 years old at the time of accident and was studying. It was also alleged that she was intelligent and very active in her studies and due to the sudden and premature death of deceased all the hopes and expectations of her parents were shattered. It was also alleged that has she not died in the accident she would have lived a long life as there was longevity of life in the family of deceased.
5. It was prayed that Rs. 20,00,000/ (Rs. Twenty lacs) be awarded as compensation to the petitioners against the respondents with interest @ 18% per annum from the date of filing of petition till its realization and interim award be also passed under [SECTION] of the Act.
6. Respondents no. 1 did not file reply inspite of opportunity being granted, hence its defence was struck off.
7. Respondent no. 2 and 3 filed joint written statement denying all the averments made in the petition. It was alleged that vehicle no. UP13N4093 belonging to insured/ respondent no. 2 was insured with respondent no. 1 on the date of alleged accident, thus, the liability if any was of respondent no. 1. It was denied that respondent no. 2 and 3 were liable to pay compensation.
8. On the pleadings of the parties, the following issues were framed:
1. Whether the deceased sustained fatal injuries in the accident which occurred on 22.09.2008 at Nayay KhandI, Indrapuram, Ghaziabad, UP caused by the rash and negligent driving of vehicle bearing no. UP13N4093 (Tractor) insured with respondent no. 1, owned by respondent no. 2 and driven by respondent no. 3? OPP.
2. Whether petitioners are entitled for compensation, if so, to what amount and from whom?
3. Relief.
9. In support of their claim petitioners examined PW1, father of deceased who tendered his evidence examination in chief by affidavit reiterating therein the contents of the petition. He proved his voter's identity card and the identity card of his wife, their ration card, letter issued by the Pradhan of Gram Panchayat of Village Dugoli, Almora stating that [ENTITY] daughter of petitioner died in a road accident for which FIR was registered. Petitioner also proved the certified copies of the criminal record i.e. FIR 1417/08 registered U/[SECTION] [ACT] at PS Indrapuram, Ghaziabad, UP against the driver of the offending vehicle, chargesheet filed against respondent no. 3 under [SECTION] [ACT], Site plan, postmortem report of deceased according to which death was due to haemorrhage and shock as a result of antemortem injuries, mechanical inspection report of the offending vehicle and superdaginama of the offending vehicle. Petitioners thereafter closed their evidence.
10. On the other hand respondent no. 1 did not file written statement and its defence was struck off whereas respondent no. 2 and 3 did not appear after filing of written statement and were proceeded exparte.
11. I have heard the Ld. Counsel for the parties and my findings on various issues are as under:
12. As the petition has been filed U/[SECTION] [ACT] it was incumbent upon the petitioners to prove that deceased sustained fatal injuries in the accident caused due to the rash and negligent driving of the offending vehicle by its driver/respondent no. 3.
13.To determine negligence of the driver, it has been held in [PRECEDENT] as follows: "Negligence evidence Admissibility of document, certified copy of criminal court, such as FIR recovery memo and mechanical inspection report of vehicle are documents of sufficient proof to reach the conclusion that driver was negligent and proceedings under [ACT] are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard."
14. In this regard the petitioners had filed certified copies of the criminal record. Thus the police investigation concluded that accident was caused due to the rash and negligent driving of offending vehicle bearing no. UP13N 4093 by its driver/respondent no. 3 who is an accuse in the criminal case filed by the police. The petitioner also placed on record the bail order of respondent no. 3 passed in the criminal case. The respondent no. 2 and 3 did not bring on record any other version of the accident. Thus, in view of the unrebutted testimony of the PW1 and the certified copies of criminal record it has been primafacie established that the deceased sustained fatal injuries in the accident caused by the offending vehicle being driven in a rash and negligent manner by respondent no. 3. Issue no.1 is accordingly decided in favour of the petitioners and against the respondents.
15. As regards the quantum of compensation PW1 stated that his daughter [ENTITY] was about 5 years old at the time of her death. He proved the postmortem report of deceased according to which deceased was about 5 years at the time of accident. The testimony of PW1 has gone unchallenged. Thus it has been proved that deceased was 5 years old. Petitioner also proved their ration card to show their relationship with the deceased. I thus, hold that petitioners are the parents/legal heirs of the deceased.
16. With regard to determination of compensation for death of young children in road accidents. It has been held in [PRECEDENT] as follows:
"The real problem that arises in the cases of death of children is that they are not earning at the time of accident. In most of the cases they were still studying and not working. Therefore, under no stretch of imagination it can be said that the parents who are appellants herein have not suffered any pecuniary loss. In fact loss of dependency by its very nature is awarded for prospective or future loss. In this context Lord [ENTITY] aptly observed in '[PRECEDENT]', as follows:
"In the case of death of an infant, there may have been no actually pecuniary benefit derived by its parents during the child's lifetime. But this will not necessarily bar the parents claim and prospective loss will found a valid claim provided that the parent establish that they had a reasonable expectation of pecuniary benefit if the child had lived."
17. The Hon'ble Supreme Court approved the method of calculation in terms of the [SECTION] of the Act, in case of non earning person and further observed in the above judgment as follows:
"Then how does one calculate the pecuniary compensation for loss of future earnings and loss of dependency of the parents, grandparents etc. in the case of nonworking student? Under the [SECTION] benefit Act in the case of a non earning person his income is notionally estimated at Rs. 15,000/ per annum. The [SECTION] is applicable to claim petitions filed U/[SECTION] of the Act. The [SECTION] provides for the multiplier to be applied in cases where the age of the victim was less than 15 years and between 15 years but not exceeding 20 years. Even when compensation is payable U/[SECTION] of the Act deviation from the structured formula as provided in [SECTION] is not ordinarily permissible except in exceptional cases." (See [PRECEDENT], [PRECEDENT] and [PRECEDENT].
It was further observed in the above said judgment:
"In the case of [PRECEDENT] wherein 14 students from a Public School got drowned in a river due to negligence of the teachers. On the question of quantum of compensation, this court accepted that the multiplier method was normally to be adopted as a method for assigning value of future annual dependency. It was emphasised that the court must ensure that a just compensation was awarded."
"So far as the pecuniary damages are concerned we are of the concerned view both the Tribunal as well as the High Court have awarded the compensation on the basis of the [SECTION] and relevant multiplier under the Act. However, we may notice here that as far as non pecuniary damages are concerned, the Tribunal did not award any compensation under the head of non pecuniary damages. However, in appeal the High Court has elaborately discussed this aspect of the matter and has awarded Rs. 75,000/ as non pecuniary damages. Needless to say, the pecuniary damages seeks to compensate those losses which can be translated into money terms like loss of earnings, actual and prospective earnings and other out of pocket expenses. In contrast, non pecuniary damages include each immeasurable elements as pain and suffering and loss of amenity and enjoyment of life. In this context, it becomes duty of the court to award just compensation for non pecuniary loss. As already noted it is difficult to quantify the non pecuniary compensation, nevertheless, the endeavour of the court must be to provide a just, fair and reasonable compensation keeping in view all the relevant facts and circumstances into consideration. We have noticed that the High Court in present case has enhanced the amount of compensation in this category by Rs. 75,000/ in all connected appeals. We do not find any infirmity in that regard."
18.Admittedly the deceased was child of 5 years at the time of accident as per the postmortem report. As per the table to [SECTION] applicable to [SECTION] of the Act the notional income of a non earning person is to be taken to be Rs. 15,000/ per annum. The [SECTION] of the Act provides for the multiplier of 15 to be applied where the age of the victim was upto 15 years. The loss of dependency thus comes to Rs. 15,000x15=Rs.2,25,000/. Besides this the claimants are also entitled to Rs. 75,000/ towards future prospects in terms of the above judgment and are also entitled to further sum of Rs.75,000/ towards nonpecuniary damages as held in the case of [PRECEDENT], Delhi(upheld by Hon'ble Supreme Court) petitioners are thus entitled to compensation to (Rs. 2,25,000/ + 75,000/ + 75,000/) = Rs. 3,75,000/ for death of their child. It is directed that the amount be given equally to both parents alongwith proportionate interest.
RELIEF:
19.I thus award a sum of Rs. 3,75,000/ (Rs. Three Lacs Seventy Five Thousand Only) as compensation with interest at the rate of 7.5% per annum including interim award from the date of filing the petition till its realisation, in favour of the petitioners against the respondents. The liability of respondents being joint and several. Both petitioners will have equal share in the awarded amount
20.For safeguarding the compensation amount from being frittered away by the beneficiaries, it has been held in [PRECEDENT] as follows:
"in a case of compensation for death it is appropriate that the Tribunals do keep in mind the principles enunciated by this court in [PRECEDENT], in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation. In that case approving the judgment of the Gujarat High Court in [PRECEDENT], this court offered the following guidelines:
"(i) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor invested in long term fixed deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may, however, be allowed to be withdrawn;
21. In view of the above judgment, out of the awarded amount 10% be released to both petitioners and their remaining share be kept in [ENTITY] in a Nationalised Bank for a period of 10 years. No advance or loan shall be allowed against the [ENTITY] except with the permission of the court. Petitioners are entitled to interest quarterly/monthly.
22. [ENTITY] to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. [ENTITY] is directed to note the particulars of the award amount in the register today itself. The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court Branch, 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 will also file the proof of residence and furnish the details of the bank account with the [ENTITY] within a week.
APPORTIONMENT OF LIABILITY:
23. Respondents did not lead evidence in spite of opportunity being granted and were proceeded exparte, thus all respondents are held jointly and severally liable to pay compensation. Respondent No. 1 being the insurer is directed to deposit the award amount within 30 days. In case of any delay, it is liable to pay interest @ 12% per annum for the period of delay. [ENTITY] to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. [ENTITY] is directed to note the particulars of the award amount in the register today itself.
An attested copy of the award be given to parties.
File be consigned to Record room.
Announced in the open court.
On 14.03.2012 ([ENTITY]) JUDGE: MACT1 : NEW DELHI