IN THE COURT OF MS.[ENTITY], JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL-02, NEW DELHI Suit Number : 452/08. Unique Case ID Number : [CASE NUMBER]. 1. Ms.[ENTITY], wife of late Mr. [ENTITY], widow of the deceased, aged 45 years. 2. Mr.[ENTITY], son of late Mr. [ENTITY], son of the deceased, aged 28 years. 3. Mr.[ENTITY], son of late Mr. [ENTITY], son of the deceased, aged 23 years. 4. Mr. [ENTITY], son of late Mr. [ENTITY], son of the deceased, aged 21years. All residents of 565, L.R. Complex, Lodhi Road, New Delhi-110003. Also At: Village and Post office: Wali, P. S. & District Baghpat, (U.P.). Petitioners. versus 1. Mr. [ENTITY], son of Mr. [ENTITY], resident of Village Sisaula, District Meerut (U.P). Driver. 2. Mr. [ENTITY], son of Mr. [ENTITY], resident of D-86, West Jyoti Nagar Extn, Shahdara, Delhi. Owner. 3. National Insurance Company Ltd. 3rd Floor, 6/90, Padam Singh Road, Karol Bagh, New Delhi. Vide Policy Number: 351200/31/07/6300003261. Valid From: 28.12.2007 to 27.12.2008. Respondents.
Date of institution : 18.11.2008. Arguments concluded on : 07.01.2011. Date of judgment and award : 07.01.2011.
Appearances: Mr.[ENTITY], counsel for all the petitioners.
Respondent numbers 1 and 2 are ex parte.
[CASE NUMBER].
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None for respondent number 3.
JUDGMENT AND AWARD
1. The present claim petition under [SECTION] and [SECTION] of the [ACT] (hereinafter referred to as the [ACT]) has been filed by Ms. [ENTITY], Mr.[ENTITY], Mr.[ENTITY] and Mr.[ENTITY], all the petitioners, against Mr.[ENTITY], Mr.[ENTITY] and National Insurance Company Ltd., all the respondents, for compensation regarding the death of Mr.[ENTITY] (husband of petitioner number 1 and father of petitioner numbers 2 to
4) in a road traffic accident.
2. In the petition, it is averred by the petitioners namely Ms.[ENTITY], Mr.[ENTITY], Mr.[ENTITY] and Mr.[ENTITY], that on 18.03.2008, the deceased Mr.[ENTITY] was coming to join his duty in Delhi from his residence on motorcycle bearing registration number UP-17B-5384 and the same was driven by the deceased Mr.[ENTITY] with due care and caution by observing traffic rules and regulations and at a normal speed. At about 10.00 am, when he reached near Mandola, all of a sudden, the offending vehicle i.e. truck bearing registration number HR-63-A-0886, which was being driven by its driver in a rash, negligent and reckless manner and at a very fast speed, hit the motorcycle of the deceased with a great force due to which he fell down on the road and received serious grievous injuries all over his body. The accident took place due to the rash and [CASE NUMBER].
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negligent driving of respondent number 1. An FIR bearing number 226/2008 was registered with Police Station Loni on 23.03.2008 under [SECTION] of the [ACT] (hereinafter referred to as the [ACT]) against the respondent number 1. Immediately after the accident the deceased Mr.[ENTITY] was removed to Guru Teg Bahadur Hospital in a precarious condition where the doctors attended to his injuries and MLC was prepared. The deceased remained admitted till 18.03.2008 and ultimately succumbed to his injuries on 18.03.2008. The petitioners have incurred about Rs.50,000/- on the treatment, transportation and last rights of the deceased Mr.[ENTITY].
The deceased was about 50 years. He was working as Constable with Secretariat Security Force, Under Home Ministry, Krishi Bhawan, New Delhi and was earning Rs.16,000/- per month from his job. He had good health and physique. He was not suffering from any ailment or vice. The accident took place solely on account of rash and negligent driving on the part of respondent number 1. Prayer for an award of Rs. 30 lacs/- only is made.
3. Summons of the case were served upon all the respondents. Respondent numbers 1 and 2 failed to put in appearance and were proceeded ex parte vide order dated 04.12.2008. They were permitted to join the proceedings vide order dated 25.03.2009 subject to cost of Rs.500/- but the same was not paid and they continued to be ex parte. Only respondent number 3 is contesting the case.
[CASE NUMBER].
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4. In the written statement filed on behalf of respondent number 3, all the averments made in the petition have been controverted and rebutted and prayer for the dismissal of the petition is made. All the pleas under the [ACT] have been taken. It is admitted that the offending vehicle i.e. truck bearing registration number HR-63-A-0886 is insured in the name of Mr.[ENTITY] vide insurance policy number 351200/31/07/63000032 valid for the period from 28.12.2007 to 27.12.2008 issued by the respondent number 3. The liability of the respondent number 3 is subject to the terms and conditions of the insurance policy and cover note and also subject to the provisions of law and statutes.
5. The learned predecessor of this Tribunal had passed an interim award of Rs. 50,000/- vide order dated 04.12.2008.
6. Issues have been framed by the learned predecessor of this Court vide order dated 04.12.2008 which are as follows:
1) Whether the husband of petitioner number 1 and father of petitioner number 2, 3 and 4 sustained fatal injuries in the road accident on 18.03.2008 (expired on 20.03.2008) by the vehicle HR-63A 0886 (Truck) was being driven by respondent number 1 in rash and negligent manner and owned by respondent number 2 and was insured with respondent number 3? OPP.
2) Whether the petitioners are entitled for compensation, if so to what amount and from whom ? OPP.
3) Relief.
7. In order to proof their case, the petitioners have examined [CASE NUMBER].
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Ms.[ENTITY], petitioner number 1, as PW1, Mr.[ENTITY], as PW2 and Mr.[ENTITY] as PW3. Respondent number 3 has not lead any evidence in support of its contentions.
8. PW1, Ms.[ENTITY], has filed her affidavit as her examination in chief and has deposed on the lines of the petition. She had deposed in cross examination that today she do not recollect the amount of the medical bills. She had filed the same with her affidavit. She had deposed that she had not seen the accident with her own eyes. She has denied that she had not spend Rs.50,000/- on medical expenses. She deposed that out of her three sons, the elder son is doing agriculture work at native village, her third son is student and second son is in search of job. Her two sons namely Mr.[ENTITY] and Mr.[ENTITY] are married. She denied that her all three sons are working.
9. PW2, Mr. [ENTITY], had deposed that he had brought the summoned record i.e. pay slip for the month of February, 2008 of Constable [ENTITY] number 1136 and as per the pay slip, his salary was Rs.10,283/- and net carry home salary is Rs. 8,360/-. He has proved the same as Ex.PW2/A. He had also brought the other record and deposed that if Constable [ENTITY] would have been alive, his salary after 6th Pay Commission would have been Rs.13,418/-. He had proved the certificate as Ex.PW2/B. He has further deposed that thereafter the increase would have been effected from time to time. In his cross examination, he has deposed that he had also brought the [CASE NUMBER].
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original record and order of 6th Pay Commission on the basis of which he had prepared the future salary and benefits of the deceased. He has further deposed that it is correct that if the person is demoted he has not entitled for future benefits for the time being.
10. PW3, Mr.[ENTITY], had deposed that on 17.03.2008 he and his father went to their native village Wali situated in District Baghpat, U.P. on motor cycle. He was driving his motorcycle bearing registration number HR 29K 4181 and his father was also driving another motorcycle bearing registration number UP17B 5384. On the next day morning on 18.03.2008 at about 8 or 8.15 am, when they were coming back to Delhi from their native village on their motor cycles, when they reached near Loni, he was driving his motorcycle behind the motorcycle of his father Mr.[ENTITY] and at that time one Mini Truck loaded with bricks came at fast speed behind them and hit the motorcycle of his father from its back. Due to impact of the Mini Truck, his father fell on road with his motorcycle and sustained grievous injury on his body and his left foot has been cut down below the knee and his stomach opened and intestines came out of his stomach. The driver of the mini truck fled away from the spot after leaving the truck there. Some public persons informed the local police of Loni, U.P. and thereafter police came at the spot and his father was removed to GTB Hospital, Dilshad Garden, Delhi. His father remained admitted in the hospital and his condition got deteriorated in the early morning of 20.03.2008. He felt that he was not urinating properly.
[CASE NUMBER].
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Thereafter, his father expired in the hospital at about 9-9.30am. After the post mortem, the dead body was handed over to them and they performed his last rites. The accident took place due to negligence driving of the said mini truck driver. The registration number of said Mini truck is HR 63A 0886. In his cross examination, he has deposed that he was driving the motorcycle at the distance of 100 yards from the motorcycle of his father. The offending truck came from behind them and the road was broken and to save the side of the truck, it came on kacha road and hit his father. He has admitted that he could not see the truck when it came from behind them. He saw the offending truck after it hit his father. He has deposed that they left their native village at about 8.00 am and they reached at the place of accident at about 8.30/9.00 am. His statement was recorded by the Loni Police on Police Station Loni. He had gone through the present petition and then signed it. He has denied that the time mentioned in the FIR and his petition is wrong. He had also stated to the police in his statement as well as in the contents of the petition that he was driving his motorcycle behind his father. He has denied that he was neither following his father and nor he was present at the place of accident.
11. I have heard the arguments of the counsel for the petitioners at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. I have also carefully perused the written arguments of the petitioners. Despite due opportunities, neither [CASE NUMBER].
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respondent number 3 filed its written arguments nor its counsel appeared for advancing verbal arguments. Therefore, the matter is being considered as per law.
12. After, careful perusal of the record, my findings on the disputed facts are as follows:
ISSUE NUMBER 1:
13. Issue number 1 is Whether the husband of petitioner number 1 and father of petitioner number 2, 3 and 4 sustained fatal injuries in the road accident on 18.03.2008 (expired on 20.03.2008) by the vehicle HR-63A 0886 (Truck) was being driven by respondent number 1 in rash and negligent manner and owned by respondent number 2 and was insured with respondent number 3? OPP.
14. As the petition is under [SECTION] of the [ACT], the rashness and negligence of the offending driver is required to be proved by the petitioners.
15. [SECTION] of the [ACT] reads as:
Liability to pay compensation in certain cases on the principal of no fault- (1) Where death of permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such [CASE NUMBER].
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death of disablement in accordance with the provisions of this section.
(2) The amount of compensation which shall be payable under sub section(1) in respect of the death of any person shall be a fixed sum of (fifty thousand rupees) and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of (twenty-five thousand rupees).
(3) In any claim or compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.
(4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. (5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force:
Provided that the amount of such compensation to be given under any other law shall be reduced from the `amount of compensation payable under this section or under [SECTION]
16. [SECTION] of the [ACT] reads as:
Application for compensation:- (1) An application for compensation arising out of an accident of the nature specified in [SECTION] may be made-
1. by the person who has sustained the injury; or
2. by the owner of the property; or [CASE NUMBER].
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3. where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
4. by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who ;have not so joined, shall be impleaded as respondent to the application.
(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under [SECTION] is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
(4) The Claims Tribunal shall treat any report of accidents forwarded to it under [SECTION] as an application for compensation under this Act.
17. I find on perusal of the certified copies of the criminal case record of FIR bearing number 226/2008 registered with Police Station Loni on 23.03.2008 under [SECTION] of the [ACT], i.e. FIR, charge sheet, request for post mortem, post mortem report, site plan, statement of eye witness and MLC, collectively exhibited as Ex.PW1/9 that in the final report under [SECTION] [ACT], the offending vehicle is mentioned as truck bearing registration number HR-63-A-0886.
[CASE NUMBER].
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18. The claim of the respondent number 3 that respondent number 1 has been falsely implicated in the present case to help the petitioners is not tenable as no one is above the law and no one can be punished without evidence and neither the police nor the Court can be made to deviate from the law.
19. Proceedings under the [ACT] are not akin to proceedings in a civil Court and hence strict rules of evidence are not required to be followed in this regard. Certified copies of the criminal Court record such as FIR etc. are sufficient proof to reach the conclusion that driver was negligent. It is not necessary for the petition to prove rashness and negligence of the driver/ respondent where there is no eye witness as the same can be proved by documents such as the FIR to show that his vehicle was involved in the accident. (Reliance can be placed upon the judgment of the Delhi High Court in the case reported as [PRECEDENT]).
20. The Supreme Court in its judgment in the case reported as [PRECEDENT]. etc., in Supreme Court Cases on Motor Accident Claims at page 685 has observed that Court/Tribunal should not succumb to niceties technicalities and mystic. Special care must be taken to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or obscurity there. Except [CASE NUMBER].
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in plain cases, culpability must be inferred from circumstances where it is fairly reasonable.
21. In order to prove the rash and negligent driving of the offending vehicle i.e. truck bearing registration number HR-63-A-0886 by respondent number 1 in the accident, the petitioners have produced and proved the certified copy of FIR bearing number 226/2008 registered with Police Station Loni on 23.03.2008 under [SECTION] of the [ACT] against respondent number 1. The charge sheet, site plan and post mortem report etc., Ex.PW1/9 collectively, have also proved on the record.
22. It can be seen from the criminal case record that the IO has reached the conclusion after investigation that the driver of the offending vehicle is respondent number 1 and he was driving the offending vehicle in a rash and negligent manner and respondent number 1 is being prosecuted. It is clear that after due investigation, it has been concluded that it is the respondent number 1 and none else who has caused the accident.
23. PWs 1 and 3 have categorically deposed that respondent number 1 had caused the accident driving the offending vehicle i.e. truck bearing registration number HR-63-A-0886 in a rash and negligent manner resulting in the death of the deceased Mr.[ENTITY]. They have assigned a very clear and specific role to respondent [CASE NUMBER].
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number 1. I do not find anything material in their lengthy cross examination which could indicate the respondent number 1 was not driving the offending vehicle in a rash and negligent manner.
24. Respondent numbers 1 and 2 are not contesting. They apparently did not care to appear before the IO of the criminal case, learned Magistrate or any authority to inform or complain that respondent number 1 has been falsely implicated. Neither respondent number 1 nor respondent numbers 2 and 3 have approached the High Court for quashing the FIR.
25. The conduct of respondent number 1 in the present matter appears to indicate that the accident has been caused by him. It cannot be disputed that respondent number 1 is facing trial in a criminal case of accident and even the police investigation has concluded that he is the culprit.
26. It also cannot be ignored that when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally non-discrepant. But Courts should bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to [CASE NUMBER].
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be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. Therefore, the contradictions in the evidence of the PWs are not relevant.
27. The petitioners have also produced and proved the certified copies of the criminal case record which includes the final report under [SECTION] [ACT] charge sheet, FIR etc. wherein it is specifically mentioned that the offending vehicle was driven in a rash and negligent manner by respondent number 1 and has caused the accident due to which the deceased Mr.[ENTITY] has received fatal injuries, ruqqa, the FIR registered regarding the accident, site plan, post mortem report of the deceased, statements under [SECTION] [ACT] of the witnesses, etc.
28. The claim of the petitioners that the deceased had died due to the injuries received by him in an accident caused by the rash and negligent driving of the offending vehicle i.e. truck bearing registration number HR-63-A-0886 by the respondent number 1 appears to be absolutely correct as proved from the criminal case record. All the above documents show that respondent number 1 is being prosecuted for rash and negligent driving of the offending vehicle and causing accident due to which the deceased had received fatal injuries.
[CASE NUMBER].
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29. PW3 is an eye witness of the accident and has categorically deposed on oath regarding the offending vehicle being driven in a rash and negligent manner by respondent number 1 due to which the accident had occurred in which the deceased Mr.[ENTITY] received fatal injuries and died. Nothing material has come forth in his cross examination which could shatter the veracity of the case or falsify the version of the petitioners. The fact that respondent number 1 was indeed rashly and negligently driving the offending vehicle resulting in the death of the deceased Mr.[ENTITY] clearly proved by the unshatterred and unassailed evidence of PWs as well as the criminal case record. The respondent number 3 have also been able to show otherwise to substantiate its averments.
30. It is settled proposition that in case the charge sheet has been filed against the driver of the alleged offending vehicle, it is sufficient proof regarding the involvement of the vehicle and factum of accident unless and until denied by the respondent. In this regard reference can also be made to [PRECEDENT], the Delhi High Court held as under:-
Plain reading of [SECTION] and [SECTION] of the Act shows that even the charge sheet submitted by the Police Officer to the Tribunal is to be treated as an application for compensation by the claims tribunal. Once the charge-sheet is forwarded to the claims tribunal, the tribunal is immediately made aware that the accident has been caused by the offending vehicle and the tribunal in that case is not required to go into any [CASE NUMBER].
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further technicality to direct the claimants to still prove that the offending vehicle was involved in the accident unless, of course, the party opposing the petition denies the involvement of such vehicle.
31. Arrest of the accused/ respondent number 1, his vehicle being impounded, his being prosecuted and his not making any complaint of alleged false implication clearly point towards the guilt of respondent number 1. These facts in totality indicate that the deceased had received fatal injuries in the road accident due to the rash and negligent driving of respondent number 1. The contentions of the respondents remain unproved.
32. There is nothing on record to indicate that the respondent number 1 was not driving the offending vehicle in a rash and negligent manner or that he has not caused the accident.
33. The concept of rashness and negligence in the present case is entirely different from the criminal proceedings. In the present case, the rashness and negligence is only one of the species of the cause of action.
34. A criminal case has been registered vide FIR bearing number 226/2008 with Police Station Loni on 23.03.2008 under [SECTION] of the [ACT] against respondent number 1 which supports the claim of the petitioners that it was due to rash and [CASE NUMBER].
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negligent act of the driver of offending vehicle i.e. respondent number 1 that the accident had taken place resulting in the death of the deceased. A perusal of the criminal record also shows that the police investigation has also concluded that the accident had taken place due to rash and negligent act of the driver of the offending vehicle i.e. respondent number 1.
35. It is evident that respondent number 1 was rash and negligent in driving his vehicle i.e. truck bearing registration number HR-63-A-0886, FIR bearing number 226/2008 registered with Police Station Loni on 23.03.2008 under [SECTION] of the [ACT], which hit motorcycle bearing registration number UP-17B-5384 on which the deceased Mr.[ENTITY] was travelling and the accident was witnessed by PW3.
36. Even if there was no eye witness, then also the final report in the criminal case is sufficient proof to show the rash and negligent driving of the offending vehicle by respondent number 1. (Reliance can be placed upon the judgments reported as [PRECEDENT]; [PRECEDENT]).
37. As discussed above, the respondents have failed to lead any evidence in this case to deny the factum of the offending vehicle being driven rashly and negligently by respondent number 1 and causing [CASE NUMBER].
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accident in which the deceased has expired. In these circumstances, I consider that the petitioners have duly proved that the deceased Mr.[ENTITY] has received injuries resulting in his death due to road accident caused by the offending vehicle i.e. truck bearing registration number HR-63-A-0886 being driven by respondent number 1 in a rash and negligent manner. Therefore, the testimonies of petitioners' witnesses considered along with the other documents i.e. the FIR registered in this case, charge sheet, post mortem report, etc., I am of the considered opinion that the deceased Mr.[ENTITY] has received injuries resulting in his death due to road accident caused by the offending vehicle i.e. truck bearing registration number HR-63-A-0886 being driven by respondent number 1 in a rash and negligent manner.
38. I hereby hold that Mr.[ENTITY] suffered fatal injuries on 18.03.2008 due to rash and negligent driving of truck bearing registration number HR-63-A-0886 on the part of respondent number
39. Issue number 1 is accordingly decided in favour of the petitioners and against the respondents.
ISSUE NUMBER 2:
40. Issue number 2 is Whether the petitioners are entitled for compensation, if so to what amount and from whom? OPP.
[CASE NUMBER].
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41. The petitioners have claimed that they are the only legal representatives of the deceased Mr.[ENTITY]. PW1 has also similarly deposed in her affidavit and there is no cross examination regarding the same. It is clear that Mr.[ENTITY] (wife/widow), Mr.[ENTITY] (son), Mr.[ENTITY] (son) and Mr.[ENTITY] (son) are the only legal heirs of the deceased.
42. In the judgment of the Supreme Court in the case of Smt.[ENTITY] & Ors. v. Delhi Transport Corporation & Anr., in [CASE NUMBER], decided on April 15, 2009 (arising out of [CASE NUMBER]) Smt.[ENTITY] & Ors. v. Delhi Transport Corporation & Anr., of the Apex Court not only is available on the official website of the Apex Court i.e. supreme court of India.nic.in and also is reported in as 2009 (6) Scale 129: 2009 ACJ 129: III (2009) ACC 708 (SC) and also relied upon in the Delhi High Court in its order dated 08.05.2009 in MAC. [CASE NUMBER] in [CASE NUMBER], in the case of [PRECEDENT]. decided on 21.04.2009 wherein the law of compensation, structured formula and appropriate multiplier have been changed, overruling the earlier law as well as giving a new clarification to the Second Schedule.
43. It is clear that all the petitioners being the widow and sons of the deceased are entitled to the compensation under the [ACT].
[CASE NUMBER].
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LOSS OF DEPENDENCY:
44. The petitioner number 1, as PW2, has deposed in her examination in chief that the deceased, Mr.[ENTITY], who was aged 50 years on the date of accident. There is nothing brought on the record which could show otherwise as there is nothing material in her cross examination by respondents who has also not led any evidence of their own.
45. Therefore, keeping in view the evidence of petitioner number 1, it is clear that the deceased was aged 50 years at the time of his demise.
46. Further, as regards, his income, it is averred in the petition and deposed in the evidence of PW1 as well as PW2 that the deceased was working as Constable with Minstry of Home Affairs, Government of India at a monthly salary of Rs.10,283/-. Had he remained alive, his salary would have been not less than Rs.30,000/- per month. PW2 has deposed that as per 6th Pay Commission, his salary would have been Rs.13,418/- per month. The relevant record is proved as Ex.PW2/C1 to C9.
47. The petitioners in their written arguments have claimed that he would have also got the HRA, which is 30% of the basic, thereby making his income as Rs. Per month. However, the pay slip of February, 2008 of the deceased shows that he was not getting any [CASE NUMBER].
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HRA. Therefore, the same cannot be taken into consideration. It is also clear from the record that the deceased who was 50 years old at the time of his accident would have retired in eight years. Therefore the loss of income should be the annual income for eight years. There is nothing shown by the petitioners which could indicate that if any of the benefits given to the deceased like GPF, CGHS, CGEGIS, etc. were stopped for the petitioners. Therefore, the income of the deceased is held to be Rs.13,418/- per month.
48. In the judgment of the Supreme Court in the case of Smt.[ENTITY] & Ors. v. Delhi Transport Corporation & Anr., in [CASE NUMBER], decided on April 15, 2009 (arising out of [CASE NUMBER]) Smt.[ENTITY] & Ors. v. Delhi Transport Corporation & Anr., of the Apex Court not only is available on the official website of the Apex Court i.e. supremecourtofIndia.nic.in and also is reported in as 2009 (6) Scale 129: 2009 ACJ 129: III (2009) ACC 708 (SC) and also relied upon in the Delhi High Court in its order dated 08.05.2009 in MAC. [CASE NUMBER] in [CASE NUMBER], in the case of [PRECEDENT]. decided on 21.04.2009 wherein the law of compensation, structured formula and appropriate multiplier have been changed, overruling the earlier law as well as giving a new clarification to the Second Schedule, it has been observed in paragraph number 9 of the above judgment that:
[CASE NUMBER].
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Basically only three facts need to be established by the claimants for assessing compensation in the case of death : (a) age of the deceased; (b) income of the deceased; and the (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by the following well settled steps:
Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand.
Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the `loss of dependency' to the [CASE NUMBER].
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family.
Thereafter, a conventional amount in the range of Rs. 5,000/- to Rs.10,000/- may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5,000/- to 10,000/- should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also added.
Question (i) - addition to income for future prospects
49. In para 10 of [ENTITY]'s judgment, it was observed that:
Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation. The question is whether actual income at the time of death should be taken as the income or whether any addition should be made by taking note of future prospects. In [ENTITY], this Court held that the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand (annual contribution to the dependants); and that where the deceased had a stable job, the court can take note of the prospects of the future and it will be unreasonable to estimate the loss of dependency on the actual income of the deceased at the time of death. In that case, the salary of the deceased, aged 39 years at the time of death, was Rs.1032/- per month.
Having regard to the evidence in regard to future prospects, this Court was of the view that the higher estimate of monthly income could be made at Rs.2000/- as gross income before deducting the personal living expenses. The decision in [ENTITY] was followed in [PRECEDENT], [CASE NUMBER].
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where the deceased was getting a gross salary of Rs.1543/- per month. Having regard to the future prospects of promotions and increases, this Court assumed that by the time he retired, his earning would have nearly doubled, say Rs.3000/-. This court took the average of the actual income at the time of death and the projected income if he had lived a normal life period, and determined the monthly income as Rs.2200/- per month. In [PRECEDENT], as against the actual salary income of Rs. 42,000/- per annum, (Rs.3500/- per month) at the time of accident, this court assumed the income as Rs.45,000/- per annum, having regard to the future prospects and career advancement of the deceased who was 40 years of age.
50. In paragraph number 19 of the [ENTITY]'s judgment, it is observed:
In New India Assurance Co. Ltd. vs. [ENTITY] [2005 (10) SCC 720], this Court noticed that in respect of claims under [SECTION] of the [ACT], the highest multiplier applicable was 18 and that the said multiplier should be applied to the age group of 21 to 25 years (commencement of normal productive years) and the lowest multiplier would be in respect of persons in the age group of 60 to 70 years (normal retiring age). This was reiterated in [PRECEDENT] and [PRECEDENT]. The multipliers indicated in [ENTITY], [ENTITY] and [ENTITY] (for claims under [SECTION] of [ACT]) is given below in juxtaposition with the multiplier mentioned in the Second Schedule for claims under [SECTION] of [ACT] (with appropriate deceleration after 50 years :
[CASE NUMBER].
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Age of the Multiplier Multiplier Multiplier scale Multiplier Multiplier deceased scale as scale as in Trilok specified in actually used in envisaged adopted by [ENTITY] as second column Second Schedule in Susamma Trilok clarified in in the Table in to [ACT] ( as Thomas [ENTITY] [ENTITY] II schedule to seen from the [ACT] quantum of compensation
51. In para 25 of [ENTITY]'s judgment, it was observed that:
The appellants next contended that having regard to the fact that the family of deceased consisted of 8 members including himself and as the entire family was dependent on him, the deduction on account of personal and living expenses of the deceased should be neither the standard one-third, nor one-fourth as assessed by the High Court, but one-eighth. We agree with the contention that the deduction on account of personal living expenses cannot be at a fixed one-third in all cases (unless the calculation is under [SECTION] to the [ACT]). The percentage of deduction on account personal and living expenses can certainly vary with reference to the number of dependent members in the family. But as noticed earlier, the personal living expenses of the deceased need not exactly correspond to the number of dependents. As an earning member, the deceased would have spent more on himself than the other members of the family apart from the fact that he would have incurred expenditure on travelling / transportation and other needs. Therefore we are of the view that interest of justice would be met if one-fifth is deducted as the personal and living expenses of the [CASE NUMBER].
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deceased. After such deduction, the contribution to the family (dependents) is determined as Rs.57,658/- per annum. The multiplier will be 15 having regard to the age of the deceased at the time of death (38 years). Therefore the total loss of dependency would be Rs.57,658 x 15 = Rs.8,64,870/-.
52. In para 26 of the judgment, it was observed that:
Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (I/3rd) where the number of dependent family members is 2 to 3, one-forth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceed six.
53. It was further observed that:
In addition, the claimants will be entitled to a sum of Rs.5,000/- under the head of `loss of estate' and Rs.5000/- towards funeral expenses. The widow will be entitled to Rs.10,000/- as loss of consortium. Thus, the total compensation will be Rs.8,84,870/-. After deducting Rs.7,19,624/- awarded by the High Court, the enhancement would be Rs.1,65,246/-.
54. The age of the deceased was about 50 years as on the date of his demise. The copy of the office identity card of the deceased shows that his date of birth as 01.07.1958 which makes his age on the date of his accident i.e. 18.03.2008 as 49 years 8 months and 19 days.
55. As the age of the deceased at the time of his demise was 49 years 8 months and 19 days, the multiplier of 13 is to be applied.
[CASE NUMBER].
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56. The personal and living expenses of the deceased would be one fourth of his income (as he had four dependents), in terms of [ENTITY]'s judgment.
57. Therefore, the total loss of dependency would be the annual income into the appropriate multiplier into deduction of personal expenses of the deceased i.e. Rs.13,418/- x 12 (annual income) x 13 (multiplier) x 3/4 (personal expenses) which comes to Rs. 1,569,906/-.
58. Hence, the petitioners are entitled to Rs.15,69,906/- for loss of financial dependency.
LOSS OF LOVE AND AFFECTION:
59. The petitioners have lost their husband and father respectively in the present accident. The loss of love and affection and the emotional trauma that the family of the deceased have undergone cannot be assessed in monetary terms. Money cannot compensate the loss of love and affection of a husband and father that petitioners had lost due to his death in the accident. However, considering the overall facts and circumstances of the case, I award a sum of Rs.40,000/- (Rs. 10,000/- each in terms of [ENTITY]'s judgment) to the petitioners towards loss of love and affection.
LOSS OF CONSORTIUM:
[CASE NUMBER].
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60. Ms.[ENTITY], petitioner number 1, the wife of the deceased, Mr.[ENTITY], has lost her husband. No amount can compensate the loss of husband to a wife who became a widow and on whom the responsibility of raising three children and taking care of her family responsibilities is thrust upon due to the circumstances. The loss of love and affection and the pain and suffering, emotional trauma that a widow has undergone cannot be assessed in monetary terms. However, considering the over all facts and circumstances, and award of a sum of Rs.10,000/- is granted to petitioner number 1, Ms.[ENTITY], towards the loss of consortium.
MEDICAL EXPENSES:
61. The petitioners have filed and proved the medical bills of Rs.3,804.20 as Ex.PW1/8 collectively and the same are not controverted by respondent number 3 nor any evidence to the contrary is led by respondent number 3.
62. Therefore, Rs.3,804.20 is awarded under the heading of medical expenses to the petitioners.
LOSS OF FUTURE PROSPECTS:
63. The petitioners have also claimed loss of future prospects but in view of [ENTITY]'s case I am not inclined to grant any amount under the heading of loss of future prospects. Even otherwise nothing has been brought on the record that there was any scope of [CASE NUMBER].
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promotion of the deceased as he was a Constable at the age of 50 years or that he possessed any special or technical qualifications which he could have utilized. Also from the evidence of PW2, it is clear that if a person is demoted then he is not entitled to future prospects.
64. Therefore, no amount is awarded under the heading of future prospects to the petitioners.
PAIN AND SUFFERING:
65. The petitioners have although claimed compensation for pain and suffering, but in view of [ENTITY]'s case, I am not inclined to grant any amount under this heading.
FUNERAL EXPENSES:
66. Rs.10,000/- is awarded on account of funeral expenses.
LOSS TO ESTATE:
67. An amount of Rs.10,000/- on account of loss to estate to petitioner number 2 is also granted as the deceased, Mr.[ENTITY], had he remained alive, he would have made some property.
TOTAL COMPENSATION:
68. In the petition, the petitioner number 2 is entitled to the following compensation in the present petition:
Loss of dependency : Rs.15,69,906/-. [CASE NUMBER]. Unique Case ID Number : [CASE NUMBER] [ENTITY] and others versus [ENTITY] and others. - Page 29 of 37 - Loss of love and affection : Rs.40,000/-. Loss of consortium : Rs.10,000/-. Medical expenses : Rs.3,804.20. Loss of future prospects : Nil. Pain and suffering : Nil. Funeral expenses : Rs.10,000/-. Loss to estate : Rs.10,000/-. Total compensation : Rs.16,43,710.20. LIABILITY OF RESPONDENT NUMBER 3:
69. It may be mentioned here that the fact that the offending vehicle was insured with respondent number 3 by respondent number 2 and was valid on the date of accident is admitted. The documents of the offending vehicle as well as the driving licence of respondent number 1 are also valid.
70. All these facts, in totality, indicate that the offending vehicle was not used in violation of the permit or the insurance policy and there is no violation of the terms and conditions of the insurance policy. All the documents of the offending vehicle as well the driver of the offending vehicle are in order and are not disputed by respondent number 3.
71. The liability of respondent number 3 cannot be avoided by it as it is liable to make the payment of the compensation under the [ACT] in the claim petition. There is no clause in the insurance policy which absolves respondent number 3 of its liability to pay compensation as it is clear that no term or condition of the same is [CASE NUMBER].
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violated. Respondent number 3, in the circumstances, is liable to pay absolutely and is not entitled to any recovery rights.
LIABILITY OF RESPONDENTS NUMBERS 1 AND 2:
72. Respondents numbers 1 and 2 being the driver and owner/insured of the offending vehicle respectively are liable to pay compensation to the petitioners as they are liable jointly and severally to pay compensation and nothing is shown which could indicate that they are absolved of their liability.
LIABILITY OF THE RESPONDENT NUMBERS 1, 2 AND 3:
73. As discussed above, respondent number 1 being the driver, respondent number 2 being the owner and insured of the offending vehicle and respondent number 3 being the insurer of the offending vehicle i.e. the bus bearing registration number DL01PB-9008 are jointly and severally liable to pay compensation under the [ACT] to the petitioners.
RELIEF:
74. Petitioners are entitled to Rs.16,43,710.20 as compensation. Interim compensation of Rs.50,000/- was awarded to the petitioners by the learned predecessor of this Court vide his order dated 04.12.2008 and this amount is required to be deducted from the final award. The total compensation which now is to be given to the petitioners is Rs. 16,43,710.20 minus Rs.50,000/- which totals to Rs.15,93,710.20. The [CASE NUMBER].
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amount is rounded off to Rs.15,94,000/-. The petitioners are also entitled to the interest at the rate of 7.5% per annum from the date of filing of petition i.e. 23.07.2008 till its realization.
75. Since the amount awarded should not be frittered away by beneficiaries owing to the ignorance, illiteracy etc., the Hon'ble Supreme Court of India in a case titled as G.M. Kerala State Road Transport Corporation v. [ENTITY] reported in 1994 (2) SCC 176, has laid guidelines pronouncing that in a case of compensation for death, it is appropriate that 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. Guidelines inter alia included of investment of share of the claimants in FDRs in nationalized banks with conditions that bank will not permit any loan or advance on the fixed deposits and interest on the amount invested is paid monthly / periodically directly to the claimant and such investment may be made in more than one fixed deposit. In case of any exigency, claimants are at liberty to apply to Tribunal for withdrawal of such investment.
76. In terms of the above guidelines, out of the amount of Rs. 15,94,000/-, Rs.9,94,000/- be given to the petitioner number 1, Rs.
[CASE NUMBER].
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2,00,000/- each be given to petitioner numbers 2 to 4. The entire amount of interest also be given to the petitioner number 1.
77. As regards the amount of Rs.9,94,000/- which is to be given to petitioner number 1, in terms of the directions in the judgment in the case of [PRECEDENT], in [CASE NUMBER] decided on 20.01.2010 by his Lordship, Hon'ble Mr.Justice [ENTITY], as she needs to bring up her minor children and also take care of her family responsibilities, Rs.1,94,000/- be released immediately in favour of petitioner number 1 in cash and the remaining amount of Rs.8,00,000/- be kept in eight fixed deposits of Rs.50,000/- each for the periods of six months, one year, one and a half years, two years, two and a half years, three years, three and a half years and four years. As mentioned above, the entire amount of interest also be given to the petitioner number 1.
78. The FDRs shall be without the facility of advance / loan or withdrawal. However, the petitioner number 1 will be entitled to monthly or quarterly interest as applicable.
79. As regards the amount of Rs.2,00,000/- each which is to be given to petitioner numbers 2 to 4, in terms of the directions in the judgment in the case of [PRECEDENT], in [CASE NUMBER] decided on 20.01.2010 by his Lordship, Hon'ble Mr.Justice [ENTITY], Rs.1,00,000/- each be released immediately in their favour in cash and the remaining amount of Rs.
[CASE NUMBER].
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1,00,000/- be kept in 4 fixed deposits of Rs.25,000/- each for the periods of six months, one year, one and a half years and two years.
80. The FDRs shall be without the facility of advance / loan or withdrawal. However, the petitioner numbers 2 to 4 will be entitled to monthly or quarterly interest as applicable.
81. Respondent number 3, Insurance Company is directed to directly deposit the award amount with the Nodal Officer of UCO Bank, Delhi High Court Branch, New Delhi within 30 days. Insurance Company/owner of the used and involved vehicle are also directed to place on record the proof of deposit of the award amount, the notice of the deposit to the claimants and the calculation of interest in the Court within 30 days from today.
82. In case the Insurance Company fails to do so, General Manager of Insurance Company will file reasons for non-compliance. In case of further delay, the Insurance Company will deposit the cheque along with the cost of Rs.5,000/- without any further directions as per judgment of [PRECEDENT].
83. [ENTITY] will report to the undersigned if the cheque(s) in this case are not received within 30 days of passing of this [CASE NUMBER].
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judgment. [ENTITY] to note the particulars of the award amount etc. in his register today.
84. The petitioners will file two sets of photographs along with her specimen signatures out of which one set be sent to the Nodal Officer of the Bank along with copy of the award by the [ENTITY] and the second set shall be retained in the Court for further reference. The photographs be got stamped and be sent to the Bank. The proof of residence and details of the bank account be also provided by the petitioners within seven days to the [ENTITY].
85. Aforesaid fixed deposits are to be made by UCO Bank, Delhi High Court Branch, New Delhi in the following manner:
(1) The UCO Bank, Delhi High Court Branch shall open separate Savings Accounts in the name of claimants and the entire interest on the aforesaid fixed deposits be credited in the said accounts.
The fixed deposits shall be automatically renewed till the period prescribed by the Court.
(2) The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Saving Accounts. (3) Withdrawal from the aforesaid account shall be permitted to the claimants after due verification and the Bank shall issue photo identity Card /Pass Books with attested photographs to claim to facilitate their identities.
(4) No cheque book be issued to the claimants without the permission of this Court.
(5) Half yearly statement of account be filed by the Bank in this Court.
(6) The original FDRs shall be retained by the Bank in the Safe custody. However, the original Pass Book shall be given to the claimants alongwith the photocopy of the FDRs. [CASE NUMBER].
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(7) The original Fixed Deposit Receipts shall be handed over to the claimants at the end of the fixed deposit period. (8) No loan, advance or withdrawal shall be allowed on the said FDRs without the permission of this Court.
(9) On the request of the claimants, the Bank shall transfer the Saving Account to any other branch of UCO Bank according to the convenience of the claimants.
(10) In terms of directions contained in case of [PRECEDENT], in [CASE NUMBER], order dated 13.01.2010, of Hon'ble Mr. Justice [ENTITY], Respondent number 2 is directed to directly deposit the award sum with Manager UCO Bank, Delhi High Court Branch within 30 days through its nodal officer and the Manager concerned of UCO Bank, Delhi High Court Branch to keep the specified amount aforesaid in fixed deposits in terms of the award and release the balance amount by transferring the same to the Saving Bank Accounts of the petitioner/ claimant. Insurance Company to also file proof of deposit of award sum, also within said period. Manager UCO Bank, Delhi High Court Branch to also furnish compliance report within 15 days of deposit of award sum. Claimant to do the necessary formalities in respect of the bank account(s).
86. [ENTITY] to keep the copy of Award in a miscellaneous file for awaiting compliance report from all concerned, which be put up on 08.02.2011.
87. Copy of the judgment be given dasti to the counsel/ retainer for respondent number 3 for compliance and copy of the judgment and information be also sent to General Manager of Insurance Company.
88. One copy of the judgment also be given to the counsel for the petitioners, dasti, as requested.
[CASE NUMBER].
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89. The file be consigned to record room.
Announced in the open Court ([ENTITY])
on this 07th day of January, 2011. Judge, MACT-02, New Delhi.
[CASE NUMBER].
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