1 IN THE COURT OF MS.[ENTITY]: JUDGE MACT : DELHI SUIT NO 668/08 1.Sh. [ENTITY], S/o. Late Sh. Katar Singh. 2.Smt. [ENTITY], W/o. Sh. [ENTITY]. Both are resident of C-423, Nand Gram, Ghaziabad. Petitioners Versus 1.Sh. [ENTITY], S/o. Sh. Nageshwar Sharma, Permanent address: Sehar Banva, Distt: Khadia, P.S.: Parvanta, Bihar. Present address: Kavita Colony, Kerari Fatak, Nangloi, Delhi. 2 (Driver) 2.Sh. [ENTITY], S/o. Sh. Vipin Kumar, R/o. H.No. 1647-48, Sector -1, New Housing Board Colony, Rohtak Road, Haryana. (Owner) 3.The [ENTITY], CBO 18 Jhandewalan, 2E/18 Swami Ram Tirath Nagar, Jhandewalan, New Delhi - 110055. (Insurer) Respondents DATE OF INSTITUTION : 02.1.2008. DATE OF DECISION: 15.12.2008. JUDGMENT
1. The present claim petition has been filed under [SECTION] of the [ACT].
2. The brief facts giving rise to the present petition are that on 12.5.2007 the deceased who was 10 years old had gone to F- Block Tempo Stand market to take his cycle. In the meanwhile, a truck bearing registration no. HR-46-9593 driven by respondent no. 1 in rash and negligent manner had come from the side of Rajkiya Inter College Nand Gram and hit the deceased with great force. The deceased had died on the spot itself.
3. Written statement was filed by Respondent no.3, [ENTITY] wherein it is stated that petition does not disclose any cause of action. However, it is admitted that vehicle bearing registration no. HR-46-9593 was insured with respondent no. 3 vide policy no. 272201/31/2007/727 in the name of Sh. [ENTITY], respondent no.2 and the insurance policy was valid from 27.5.2006 to 26.5.2007.
4. During the course of proceedings, the respondent no. 1 and 2 were proceeded ex-parte vide order dated 30.5.2008.
5. On the basis of the pleadings of the parties, the following issues were framed during the course of trial:-
(i) Whether deceased Master [ENTITY] died in motor vehicular accident on 12.5.07 at about 11:30 am at near Rajkiya Inter College, Nand Gram, Ghaziabad on account of driving of truck no HR-46-9593 by R1?
(ii) Whether petitioners are entitled for compensation, if so, how much and from whom?
(iii) Relief.
6. The petitioner in support of their claim have examined only two witnesses.
7. PW-1 Sh. [ENTITY], who is petitioner no. 1, tendered his evidence by way of affidavit Ex.PW1/A and stated therein that on 12.5.2007 the deceased who was 10 years old had gone to F- Block Tempo Stand market to take his cycle. In the meanwhile, a truck bearing registration no. HR-46-9593 driven by respondent no. 1 in rash and negligent manner had come from the side of Rajkiya Inter College Nand Gram and had hit the deceased with great force. The deceased had died on the spot itself.
He further stated that post mortem was conducted at M.M.G. Hospital, Gaziabad. The deceased was ten years old at the time of accident. He was studying in sixth standard.
On being cross-examined by Sh. [ENTITY], Ld. Counsel for respondent no. 3, insurance company, he stated that he has no document to show his age. He has also not proved the age of his son. He has not proved that his son was studying in sixth standard. He admitted that he is not an eye witness to the present accident.
8. PW-2 Sh. [ENTITY], tendered his evidence by way of affidavit Ex. PW2/A and stated therein that on 12.5.2007 he was standing on the tempo stand near F Block. The deceased was on his cycle when in the meanwhile, a truck bearing registration no. HR-46-9593 driven by respondent no. 1 in rash and negligent manner had come from the side of Rajkiya Inter College Nand Gram and hit the deceased with great force. The deceased had died on the spot itself.
On being cross-examined by Ld. Counsel for the insurance company he stated that he is the neighbourer of the deceased . He had gone to the place of accident to collect some payment and he is an eye witness to the case.
9. Thereafter petitioner's evidence was closed
10. The respondent insurance company did not lead any evidence in respect of the case.
11. I have heard arguments and I have gone through the case file and accordingly I record my findings on issues as follows:-
12.Issue No.1:
Whether deceased Master [ENTITY] died in motor vehicular accident on 12.5.07 at about 11:30 am at near Rajkiya Inter College, Nand Gram, Ghaziabad on account of driving of truck no HR-46-9593 by R1?
As per FIR registered in the present case Ex. PW1/1. on 12.5.2007 the deceased who was 10 years old had gone to F-
Block Tempo Stand market to take his cycle. In the meanwhile, a truck bearing registration no. HR-46-9593 driven by respondent no. 1 in rash and negligent manner had come from the side of Rajkiya Inter College Nand Gram and hit the deceased with great force. The deceased had died on the spot itself. Police was informed and a case was registered vide FIR bearing no. 315/07 at Police Station Sihani Gate U/[SECTION] [ACT].
In evidence, petitioner has placed on record postmortem report of the deceased Ex.PW-1/4. Said Postmortem report has also supported the claim of the petitioner.
PW-1 Sh. [ENTITY], who is the petitioner, had clearly stated that the accident had been caused due to rash and negligent driving of Respondent no. 1, [ENTITY].
PW-2 Sh. [ENTITY], who is eye witness to the case has also supported claim of the petitioner that the accident had been caused due to rash and negligent driving on the part of respondent no. 1.
Therefore, the testimony of eyewitness and PW-1 considered alongwith the other documents i.e. the charge sheet of FIR registered in this case, postmortem report, MLC of deceased, I am of the opinion that deceased died in roadside accident due to involvement of Motor Cycle bearing registration No. HR-46-9593 driven by respondent no.1, [ENTITY] in rash and negligent manner . Hence, issue no.2 is decided against the respondents.
16. Issue No. 2:
Whether petitioners are entitled for compensation, if so, how much and from whom?
Since, issue no.1 has been decided in favour of the petitioners that the deceased had died due to the injuries sustained in the accident with the offending vehicle and no contrary evidence has been brought on record; the petitioners are entitled to compensation under the [ACT].
18. LOSS OF DEPENDENCY.
In [PRECEDENT] in this case it was held by Hon'ble Supreme Court 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."
In case of [PRECEDENT] delivered by Hon'ble Mr Justice [ENTITY] of Hon'ble High Court of Delhi has held that in case of death minor child below 15 years as per second schedule appended to [SECTION] of [ACT] notional income should be taken of Rs.15,000/- 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 Rs.2.25 lakhs. On this Hon'ble High Court has awarded Rs.50,000/- on account of the loss of company of child and for pain and suffering , therefore total amount of Rs.2.75 lakh was awarded by Hon'ble High Court of Delhi.
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 notional income of deceased is in the present case as of 10 years has to be taken as Rs15,000/- per annum and in second schedule itself multiplier of 15 has been provided for the age of deceased being 05 years. Therefore, total loss of dependency will be Rs. 2.25 lakhs as provided in the judgment of Hon'ble High Court of Delhi.
19. LOSS OF LOVE AND AFFECTION.
Petitioners have lost their minor son in the present accident. Money cannot compensate the loss of affection that they had lost due to the accident. I, however, considering the overall facts and circumstances of the case, award a sum of Rs.40,000/- to petitioners towards loss of love and affection.
20. FUNERAL EXPENSES.
Rs.5,000/- is awarded on account of funeral expenses.
21. LOSS TO ESTATE.
I award Rs 5,000/- on account of loss to estate to petitioner.
22. RELIEF In view of my findings on issues no. 1 and 2 the petitioners are entitled to the following compensation in the present petition:
Loss of dependency : Rs. 2,25,000 Loss of Love and affection :Rs.40,000/- Funeral Expenses :Rs.5,000/- Loss to estate :Rs.5,000/- Total compensation : Rs. 2,75,000/-
23. Interim award of Rs. 50,000/- has already been granted to petitioners. Therefore total compensation remains Rs. 2,75,000/- minus Rs. 50,000/- which comes to Rs. 2,25,000/-. Petitioners are also entitled to the interest at the rate of 7.5% per annum from the date of filing of petition i.e. 02.1.2008 till its realization.
1. Petitioner no. 1 Sh. [ENTITY] is the father of the deceased. Petitioner no. 2 Ms. [ENTITY] is the mother of the deceased Therefore, the disbursement of the compensation will be equal to both the petitioners, i.e. a sum of Rs. 1,12,500/- each is granted to both the petitioners. Out of this amount Rs. 70,000/- each be given to both the petitioners in cash and the remaining amount be kept in the form of FDR with nationalised bank for the period of three years without the facility of advance/loan or withdrawal. However, petitioner will be entitled to monthly or quarterly interest as applicable.
2. Therefore Respondent no.1 being driver, respondent no. 2 being owner and respondent no 3 being insurer of the offending vehicle are jointly and severally liable to make the payment of compensation to petitioners.
3. Respondent no 3 is directed to place on record the cheque of compensation within 30 days. File be consigned to Record Room. Copy of the order be given dasti to retainer of insurance company for compliance.
Announced in open court ([ENTITY]) on 15.12.2008 JUDGE : MACT : DELHI