IN THE COURT OF SHRI [ENTITY] PRESIDING OFFICER: MOTOR ACCIDENTS CLAIMS TRIBUNALII, DWARKA COURTS: NEW DELHI [CASE NUMBER] IN THE MATTER OF : 1. Sh. [ENTITY] (Father) S/o Sh. Jesa Ram Pahuja 2. Smt. [ENTITY] (Mother) W/o Sh. [ENTITY] Both residents of: C62, Sarve Sanjhi Aptt. Sector9, Plot No. 8, Dwarka New Delhi110077 Petitioners Versus 1. Sh. [ENTITY] (Driver) S/o Sh. Ramanand R/o J.J.M. 110T House Sadh Nagar, New Delhi. Also At: Village Rupoli, P.S. Bishanpur Distt. Darbanga, Bihar 2. Sh. [ENTITY] (Owner) S/o Sh. Rameshwar Dayal R/o D79/80, Village Mangla Puri New Delhi. 3. HDFC Egro General Ins. Co. Ltd. (Insurer) K.G. Marg, New Delhi. Respondents [CASE NUMBER] Sh. [ENTITY] & Ors. v. Sh. [ENTITY] & Ors. Page 1 of 14 Filed on : 04.11.2011 Reserved on : 25.09.2012 Decided on : 28.09.2012 J U D G M E N T:
1. This is a claim petition which is filed under [SECTION] and [SECTION] of the [ACT] for grant of compensation.
2. Petitioner no. 1 is the father and Petitioner no. 2 is the mother of the deceased late Ms. [ENTITY] who suffered fatal injuries in a road traffic accident on 20.09.2011.
3. Respondent No. 1 is the driver of the offending vehicle, Respondent No. 2 is its owner and Respondent No. 3 is the insurer. Case of Petitioners:
4. It is stated in this claim petition that Ms. [ENTITY] (D.O.B. 1973) was doing a private job of Media Manager with Nirman Advertisement Pvt. Ltd. and was earning Rs. 20,000/ per month in the year 2011.
5. On 20.09.11 at about 9.15 hours at main road near Delhi Jal Board Office, Palam Village, New Delhi the said Ms. [ENTITY] was driving her Scooty bearing registration no. DL9S AV0124 and when she reached main road near Delhi Jal Board Office the offending vehicle bearing registration no. HR55M8920 came at a high speed being driven rashly and negligently and without caring for the safety of the others and hit the Honda Activa No. DL9SAV0124 which was being driven by Ms. [ENTITY], as a result of which she died in the said accident.
6. It is stated that Ms. [ENTITY] (hereinafter described as deceased) was taken to Sunil Nursing Home and thereafter to DDU Hospital but she was declared 'brought dead' by the doctors.
7. It is stated that FIR No. 244/11 in P.S. Palam Village is registered against respondent no. 1 under [SECTION] A of [ACT].
8. Petitioners who are her parents have claimed a compensation of Rs. 50 lacs on account of death of the deceased. Case of Respondent no. 1 and 2:
9. Respondent no. 1 and 2 have filed a common written statement and have stated that no accident had taken place with their vehicle. They have also stated that petitioners have not suffered any loss because of any act of answering respondents in any manner and therefore petitioners are not entitled to receive any compensation. It is also stated that the compensation claimed by petitioners is exorbitant, exaggerated, irrational and unjust. Even it is also denied that respondent no. 1 was the driver of alleged offending vehicle at the time of its accident. Rest of the contents of claim petition were also denied. Case of Insurance Company:
10. Insurance company admitted in its written statement that vehicle bearing no. HR55M8920 LGV Tata 407 is insured with the answering respondent in the name of Sh. [ENTITY] vide policy no. [CASE NUMBER] w.e.f. 25.02.11to 24.02.12 but denied rest of the averments made in the claim petition.
11. It is stated that in case driver of offending vehicle was not having a valid and effective driving license and the vehicle was being driven without proper permit or fitness, in that event, the insurance company will have no liability to pay any compensation to the petitioners.
12. From the pleadings of parties, following issues were framed: (1) Whether Ms. [ENTITY] D/o Sh.
[ENTITY] sustained fatal injuries in a motor vehicle accident dtd 20/09/2011 due to rash or negligent driving of vehicle bearing registration no. HR55M8920 by R1? OPP (2) Whether the petitioners are entitled to claim compensation, if so, what amount and from whom? OPP (3) Relief.
Evidence on behalf of Petitioners:
13. Father of the deceased entered in the witness box as PW1 and stated similar facts in his evidence by way of affidavit as were already stated by him in the claim petition.
14. Election ICard of the father of the deceased was proved as Ex. PW1/1, Election ICard of the mother of the deceased was proved as Ex. PW1/2, Salary Certificate given by M/s. Nirman Advertisement Pvt. Ltd. as per which petitioner was earning a salary of Rs. 20,000/ per month was proved as Ex. PW1/3, All India Sr. School Examination, 1991 and All India Secondary School Examination, 1989 certificates were proved as Ex. PW1/45. As per these certificates, the date of birth of the deceased was 11.05.1973. Statement of marks given by University of Delhi was proved as Ex. PW1/6, PAN Card of the deceased was proved as Ex. PW1/7, PAN Card of the parents of the deceased were proved as Ex. PW1/89, statement of account of Axis Bank where salary of the deceased was credited for the month of April, May and June, 2011 was proved as Ex. PW1/10.
15. In cross examination PW1 deposed that he is a pensioner getting a pension of Rs. 16,000/ per month but his wife is a housewife. He stated that he is not an eye witness to the accident. He denied suggestions contrary to the case set up by him.
16. Sh. [ENTITY], Director of M/s. Nirman Advertisement Pvt. Ltd. where the deceased was employed was examined as PW2. He deposed that salary certificate which was already exhibited as Ex. PW1/3 was issued by him. He identified his signatures at point A on the said certificate. During his cross examination, he clarified that the income of the deceased was increased to Rs. 20,000/ per month in January, 2011 and she met with fatal injuries in September, 2011. Earlier the salary of the deceased was Rs. 15,000/ which was being given in cash but once salary was increased to Rs. 20,000/ same was given through cheques. The salary was given on lump sum basis. Conveyance Allowance was not included in the salary and only employees in Sales Division were given Conveyance Allowance. He stated that the employment of deceased was permanent in nature because he has employees who have worked for him for the last 15 years. He stated that fluctuation in the cheque amount credited in the account of deceased as per Ex. PW1/10 is for the reason that salary varies depending upon working days in a month/ leaves availed by an employee.
17. Counsel for petitioner also filed on record certified copy of Final Form Report under [SECTION] of [ACT], certified copy of statements of witnesses recorded under [SECTION] of [ACT], MLC etc.
18. No witness was examined on behalf of respondents.
19. Arguments were addressed by Sh. [ENTITY], learned Counsel for petitioners and Sh. [ENTITY], learned Counsel for insurance company.
20. On the basis of pleadings of parties, evidence on record and arguments addressed, issue wise findings are as under: ISSUE NO.1:
21. Burden of proof that the offending vehicle was being driven rashly and negligently is always on the petitioner.
22. It is rather sine qua non.
23. To succeed in a claim petition filed under [SECTION] of [ACT] claimants have to show that the offending vehicle was being driven rashly and negligently.
24. In this case, petitioners have not examined an eye witness. However, certified copy of statement of Sh. [ENTITY] recorded under [SECTION] of [ACT] is on record as per which he deposed that on 20.09.11 at 9.00 a.m. he was standing outside his office and saw that the deceased was coming on her scooty from Brahma Apartments side and a Tata Truck bearing no. HR55M8920 being driven rashly and negligently had hit the scooty from behind as a result of which the scooty driver fell down on the road. He deposed that the accident has taken place due to rash and negligent driving of respondent no. 1.
25. Respondent no. 1 has not entered in the witness box to prove his innocence or to show that the accident took place due to negligence of deceased.
26. No witness was examined on behalf of respondent no. 1 and 2 to show that their vehicle was not involved in the accident. No complaint was made to the police authorities against false implication of their vehicle in the accident in question.
27. In [PRECEDENT], the Hon'ble Gawhati High Court has observed as under: "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 of 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 small inquiry and thus legislation for the whole of the society"
28. This case was noticed by Hon'ble High Court of Delhi in the case titled as [PRECEDENT] where adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there is nothing on record to show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.
29. In the case of [PRECEDENT] dated 05.07.12, the Hon'ble High Court of Delhi has held as under: "8. In [ENTITY] and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Supreme Court held that in a petition under [SECTION] of the Act, the Claimants were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the [ACT]. Para 15 of the report is extracted hereunder: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
9. The report in [ENTITY] (Supra) was relied on by the Supreme Court in its latest judgments in [PRECEDENT] and [PRECEDENT]."
30. In the case of [PRECEDENT], the Hon'ble High Court of Delhi has held that: "The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in [PRECEDENT] (Supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in [CASE NUMBER], pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet under [SECTION], [ACT] against the driver; (iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the [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. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver."
31. On the basis of statement of Sh. [ENTITY] under [SECTION] of [ACT] and on the basis of the fact that the Police after investigation in the matter has filed chargesheet under [SECTION] of [ACT] against respondent no. 1, this issue is decided in favour of petitioners and against the respondents holding that offending vehicle No. HR55M8920 was being driven rashly and negligently by Respondent No. 1 and had inflicted fatal injuries to the deceased Ms. [ENTITY], daughter of the petitioners.
ISSUE NO. 2:
32. As per Ex. PW1/3, salary drawn by the deceased was Rs. 20,000/ per month. This is also reflected in her bank statement which is Ex. PW1/10. In the month of April, 2011 a sum of Rs. 20,000/ was credited in the bank account of deceased. In the month of May, 2011 a sum of Rs. 15,333/ were credited and again in June, 2011 a sum of Rs. 20,000/ was credited in the account of the deceased. The variation in the salary credited in the account of the deceased is due to number of leaves availed by the deceased in the month of May, 2011. This is clear from the evidence of PW2, the employer. Therefore, the salary drawn by petitioner was Rs. 20,000/ per month.
33. PW2 deposed that there are employees who are working with him for the last 15 years and job of deceased was of permanent nature. Therefore, she is entitled for compensation for loss of future increase in her wages.
34. The age of deceased was 38 years at the time of accident. Therefore, 50% is to be added towards future increase in income. Thus, the assumed income of the deceased would be Rs. 26,000/ per month. She was a bachelor, she would have spent 50% on her personal expenses and at most contribution to the family would be Rs. 13,000/ per month.
35. In the case of [ENTITY] & Ors. v. National Insurance Company Ltd. & Ors. 2012 VI AD SC 399, the Hon'ble Supreme Court has held that selection of multiplier is based on the age of the deceased and not on the basis of age of dependents. The Hon'ble Supreme Court has held that there may be a number of dependents of the deceased whose age may be different and therefore the age of dependents has no nexus with the computation of compensation.
36. Thus as the age of deceased was 38 years on the date of accident, the multiplier applicable would be 15.
37. In the case of [PRECEDENT] which is [CASE NUMBER] dated 03.01.12 a plea was taken before Hon'ble High Court by the insurance company that the deceased was a female child and would have got married after a couple of years and thus there was no loss of dependency to appellants. This contention was repelled by the Hon'ble High Court of Delhi as it showed gender bias and it was held that daughters in today's society take as much care of their parents as sons. There is no intelligible basis to deny compensation to parents in respect of death of daughter or female child.
38. Therefore, loss of dependency for petitioners would be Rs. 23,40,000/ i.e. Rs. 13,000/ x 12 x 15.
39. Besides this, petitioners would be entitled to a compensation of Rs. 1,00,000/ as loss of Love and Affection. For this, reliance can be again placed on judgment of Hon'ble Supreme Court of India in the case of [ENTITY] (Supra).
40. The Hon'ble High Court of Delhi, in [CASE NUMBER], decided on 19.07.12, in the case of [PRECEDENT]., relying on the case of [ENTITY] (Supra) did not interfere in the award of compensation of Rs. 1 lac for loss of love and affection.
41. Besides this, petitioners are also entitled to a compensation of Rs. 10,000/ for Loss of Estate and Rs. 10,000/ towards Cremation Charges.
42. Therefore, total compensation payable to the petitioners would be Rs. 24,60,000/ which shall be payable with interest @ 9% per annum from the date of filing of this claim petition which is 04.11.2011 till its deposit.
43. Compensation given vide interim award, if deposited by insurance company, shall be deducted from this compensation now finally awarded in favour of petitioners.
44. For granting interest @ 9% per annum, reliance can be placed on the judgment of Hon'ble High Court of Delhi in [PRECEDENT] dated 19.03.2012 where in para 72 and 73 the Hon'ble High Court has held as under: "72. In [PRECEDENT], the interest granted by the National Commission @ 9% was upheld by the Supreme Court. In [PRECEDENT], interest @ 9% per annum was awarded by the Hon'ble Supreme Court. In [PRECEDENT], the interest @ 9% p.a. awarded by the Claims Tribunal was approved. In [PRECEDENT], interest @ 9% p.a. was awarded on the enhanced amount of compensation.
73. In these circumstances, I would also follow the Bank rate of interest and would award interest @ 9% p.a. on the enhanced amount."
45. In the case of [PRECEDENT]. :
[CASE NUMBER] dated 11.05.2012 the Hon'ble High Court has held as under: "7. The Claims Tribunal has awarded interest @ 6% per annum which is on a lower side. The Apex Court has awarded interest @ 9% per annum, in the recent case of [PRECEDENT]. Following the judgment of the Apex Court, the rate of interest is enhanced from 6% per annum to 9% per annum."
46. Insurance company has not proved any defence. Therefore, compensation is to be paid by insurance company which be paid within 30 days from today under intimation to the petitioners by registered post.
47. For apportionment of compensation, following directions are passed: (1) 40%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Petitioner No. 1 father of the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c [ENTITY]. Out of this, 10% shall be released in his Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in 10 FDRs of equal amount for a period of 1 to 10 years. Monthly interest will be credited in his Saving Bank Account regularly.
(2) 60%, out of the total compensation awarded, with proportionate interest shall be payable in favour of Petitioner No. 2 mother of the deceased. This payment shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c [ENTITY]. Out of this, 10% shall be released in her Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi. Balance compensation will be kept in 10 FDRs of equal amount for a period of 1 to 10 years. Monthly interest will be credited in her Saving Bank Account regularly.
(3) Original FDRs shall remain with the bank. Only copies thereof will be given to the petitioners. However, pass books will be given to the petitioners. Cheque books shall not be given to the petitioners.
(4) No loan or advance will be given against these deposits.
(5) FDRs shall not be prematurely encashed without leave of this Tribunal.
(6) Petitioners shall cooperate with the bank by providing requisite documents and by completing required formalities for opening Saving Bank and FDR Accounts.
48. Copy of this order be given dasti to all the parties.
49. A copy of this order be also sent to the State Bank of India, Dwarka Courts, New Delhi.
50. File be consigned to the Record Room.
Announced in the open Court On the 28th Day of September, 2012.
([ENTITY]) PRESIDING OFFICER MOTOR ACCIDENTS CLAIMS TRIBUNALII DWARKA COURTS: NEW DELHI