1 IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT & SESSIONS JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI. ([CASE NUMBER]) (Fatal case) 1) Smt. [ENTITY] (wife of deceased) W/o late [ENTITY] 2) [ENTITY] (minor daughter) d/o late [ENTITY] 3) Ms.[ENTITY] (minor daughter) D/o late [ENTITY] 4) [ENTITY] (mother) W/o [ENTITY] 5) [ENTITY] (father) S/o [ENTITY]. (Petitioners No. 2 & 3 being minor children of deceased, hence represented through their legal and natural guardian and mother [ENTITY] /petitioner No.1). All petitioners are resident of A-179, Aman Vihar, Block A, Kirari Suleman, Delhi. Petitioners Versus 1) Sh. [ENTITY] (Driver) S/o Sh. [ENTITY] C/o Prashant Roadlines, R/o Village Pali, Distt. Faridabad, Haryana. 2nd Address: F-6/337, Sultan Pur Majra, Delhi. 2) Reliance General Insurance Ltd. 13th floor, Ansal Tower, Nehru Place, New Delhi. Respondents 2 Date of institution 07.07.2010 Date of decision 12.07.2013 (Application u/[SECTION] of Motor Vehicles Act for grant of compensation) JUDGMENT:
1 On the unfortunate day of 14.6.2010 at about 9.00 AM, the accident took place at in front of BA-78-79, Industrial Area Phase-II, Mangol Puri, Delhi with vehicle No. HR 38E 0620 which was owned by respondent No.1 and insured with respondent No.2 resulting into the death of the deceased while the deceased was in the process of painting the tanker i.e. vehicle in question from inside. The postmortem of deceased was conducted at Sanjay Gandhi Memorial Hospital, Delhi. An FIR No. 425/10 PS Mangol Puri, U/[SECTION] [ACT] was registered.
2 Respondents No.1 failed to file its written statement and vide order dt. 5.5.2011 the defence of R1 was ordered to be struck off. Written statement was filed on behalf of respondent No.2/insurance company wherein it admitted that the offending vehicle was insured with the insurance company vide policy No. 1309792343002063 valid from 28.8.2009 to 27.8.2010, denied all allegations made by the injured but evaded its liabilities on technicalities.
3 On the basis of the pleadings of the parties following issues were framed on 12.5.2011:-
Issues
1. Whether [ENTITY] died in between 14.6.2010 to 15.6.2010 at unknown time inside of oil tanker No. HR 38E 0620 standing in front of BA 78-79, Industrial Area Phase-II, Mangol Puri, Delhi owned by respondent No.1 out of use of this vehicle when the deceased was painting it ? OPP
2. Whether the petitioners are entitled to compensation, if so to what an extent and from which of the respondents ? OPP.
3. Relief 4 The petitioners in support of their case examined one witness:-
PW1 is Smt. [ENTITY]. She is wife of deceased/petitioner No.1 in this case. She tendered her evidence by way of affidavit as Ex.PW1/A. She further relied upon the documents Ex.PW1/1 to Ex.PW1/5.
Vide order dt. 28.9.2012 the copy of the final report submitted by the IO which has not been objected by the insurance company was proved as Ex.PX. Thereafter PE was closed.
No witness was examined on behalf of respondent No.2 despite opportunity being granted. Thereafter RE was closed.
5 I have heard Ld. counsels for the parties besides going through the material on record carefully.
ISSUE NO.1:
6 The onus of proving the issue No.1 was on the petitioners. The principles to be followed in the case of motor accident claims has been laid down by the Hon'ble High Court of Guwahati in case cited as [PRECEDENT] by Hon'ble Guahati High Court 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 case [PRECEDENT] 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".
7 As the onus of proving the issue No.1 was on the petitioners who are the legal heirs of deceased who expired due to accidental injuries of accident. The petitioners examined the petitioner No.1 i.e. wife of deceased as PW1.
8 The copies of the criminal case record is also placed on the record and proved on record as Ex.PX which has not been objected to by the counsel for insurance company/respondent which shows that the police has prosecuted the respondent No.1/owner of the offending vehicle for engaging the deceased for painting the offending vehicle/tanker from inside and causing the accident in question. It is not the case of the respondents that they had lodged any complaint to any higher authority against alleged false implication of respondent no. 1 in criminal case. It is also not their case that they had any previous enmity with petitioner or IO of the case which facilitated them to involve respondent no. 1 in the alleged false case. The cause of death mentioned in the Post Mortem report annexed with the final report Ex.PX as due to suffocation. The present claim petition has been filed by the petitioners U/[SECTION] [ACT]. Hence as per [SECTION] [ACT]:
[SECTION] [ACT] reads as under:
(1) Notwithstanding anything contained in this act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or negligent or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the [SECTION].
9 Hence the use of vehicle at the time of accident has been brought on record on the basis of material available on record. The death has been caused due to the injuries sustained due to suffocation inside the tanker of the offending vehicle and it is sufficient for granting compensation u/[SECTION] [ACT]. Furthermore, in clause (2) it is specified that in any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or negligent or default of the owner of the vehicle or vehicles concerned or of any other person.
10 Further the counsel for petitioner has cited the judgment reported in [PRECEDENT] passed by Hon'ble Mr. Justice [ENTITY] in case [PRECEDENT] wherein it has been held that,
(i) [ACT], 1988, [SECTION] Accident claim - Out of use of motor vehicle- scope deceased employed as driver of tanker - Accident arising out of use of insured vehicle - Proof of -Deceased parked vehicle and climbed over tanker to check inside condition of tanker when he came in contact with an over-head electric wire and died on spot - Claimants : father, widow and minor son - Held, accident arose out of use of motor vehicle - Claimants held entitled to compensation under [SECTION] of [ACT]."
11 In view of the above discussions, it has been proved that the death of deceased has been caused out of the use of the motor vehicle in question bearing No. HR 38E 0620 in question by respondent no. 1. Hence, this issue is decided in favour of petitioners and against the respondents.
Issue no. 2:-
12 In the petition, age of the deceased is described as 27 years at the time of his death. Since this a petition U/[SECTION] of [ACT], so as per Second Schedule of this section, a multiplier of 17 has to be applied to assess the compensation amount.
13 Deceased was allegedly self employed and working as painter and was earning Rs. 40,000/- per annum but to prove it no evidence is shown. No proof of his educational qualification is brought on record. However, it has been proved on record that the deceased expired while doing his painting job inside the tanker i.e. offending vehicle bearing No. HR 38E 0620. During cross examination by counsel for respondent of PW1/wife of deceased she denied the suggestion that her husband was not earning Rs. 40,000/- per annum. In such situation, this Tribunal accepts the claim of PW1 with regard to the annual income of the deceased to be Rs 40,000/-.
14 Deceased left behind his widow, two minor children, father and mother. Normally father is not treated as dependent upon the son. Thus, virtually there were four dependents upon the deceased at the time of his death and accordingly 1/3rd income of the deceased has to be deducted as per schedule towards his personal expenses. Thus, the loss of dependency per annum comes to Rs. 26666.67 paise. Accordingly, in this case, the total loss of dependency comes to Rs. 4,53,333.39 paise. (Rs.40000/- - 1/3 x 17) which in round figure comes to Rs. 4,53,333/-.
15 Petitioners have not brought on record any document regarding expenses incurred on funeral and last rites of the deceased nor have alleged about in either in the petition or in the affidavit of PW-1, so as per second schedule, petitioners are granted sum of Rs. 2,000/- as funeral charges. Petitioner no. 1 being the widow of the deceased is also entitled sum of Rs. 5,000/- as loss of consortium. They are also entitled to sum of Rs. 2,500/- towards loss of estate.
16 As it is admitted that the offending vehicle i.e bearing No. DL 4CAP 0470 was duly insured with the insurance company/respondent No. 3 vide policy No. 71444844 valid from 29.12.2010 to 28.12.2011 at the time of accident and the respondent No.1 was having a valid driving licence. Hence in the absence of any statutory defence of insurance company and breach of the terms of the policy, the same is liable to give compensation to the petitioner.
17 In view of the above discussions, this issue is decided in favour of petitioner, by holding that he is entitled to get the following total compensation from respondent No.3 i.e. insurer of offending vehicle only.
1) Loss of dependency Rs. 4,53,333/-
2) Funeral charges Rs. 2,000/-
3) Loss of Estate Rs. 2,500/-
4) Loss of consortium Rs. 5,000/-
Total = Rs. 5,48,333/- Relief 18 On the basis of findings given above, present petition is disposed off.
Respondent no. 2 is directed to pay within 30 days a sum of Rs. 5,48,333/- to the petitioners alongwith interest at the rate of 9% p.a. as per the judgment in case [PRECEDENT] from the date of filing of the petition i.e. 7.7.2010 till realization.
19 Further it is directed that out of the total compensation amount Rs. 20,000/- through her saving bank account be paid to the petitioner No.1 i.e. widow of deceased.
20 Rs. 1.5 lac each be deposited in the form of FDRs in the name of petitioner No. 2 & 3 i.e. minor daughters of deceased. (In case of minor daughter the FDR be kept for the age of 21 years or at the time of marriage which ever comes earlier) with liberty to the petitioner No.1 to withdraw the monthly interest through her saving bank account to be used for their welfare.
21 Rs. 50,000/- be deposited in the form of FDR in the name of petitioner No.4 mother of deceased initially for the period of five years (thereafter it be renewed from time to time) with liberty to the petitioner No.4 to withdraw the monthly interest through her saving bank account.
22 Rs. 25,000/- deposited in the form of FDR in the name of petitioner No. 5 father of deceased initially for the period of five years (thereafter it be renewed from time to time) with liberty to the petitioner No. 5 to withdraw the monthly interest through his saving bank account.
23 Remaining amount with upto date interest on entire amount be kept in the form of ten FDRs in the name of petitioner No.1 (widow of deceased) which is to be divided as 10% for one year, 10% for two years, 10% for three years, 10% for four years, 10% for five years, 10% for six years, 10% for seven years, 10% for eight years, 10% for nine years and 10% for ten years.
24 All the above said FDRs be kept with SBI Tis Hazari Court, Delhi branch with the right to the decree holders to get the monthly interest through their saving bank account to the nearest branch of any nationalized bank to their residence to be electronically transmitted if any request being made to the branch manager of SBI, Tis Hazari Court branch, Delhi.
25 All the original FDRs be deposited in the SBI, Tis Hazari Court branch and only attested photocopies of the FDRs be provided to the petitioners. The FDRs not to be encashed without the permission of the Tribunal. No ATM facility or loan facility is allowed on these FDRs.
26 Copy of this judgment be given to the parties for compliance.
Put up for payment on 12.8.2013.
Announced in the open (D.K.MALHOTRA) Court on 12.07.2013 JUDGE, MACT North -II Rohini DELHI 12.07.2013 Pr. Counsel for the petitioner.
Sh. [ENTITY], Counsel for insurance company. None for other respondents.
Final arguments heard.
Vide separate judgment, petition stands disposed off. Put up for payment on 12.8.2013.
Announced in the open (D.K.MALHOTRA) Court on 12.07.2013 JUDGE, MACT (NORTH-II) DELHI