-1- . IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT & SESSIONS JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI (MACT No. 531/10/08) 1) [ENTITY] S/o Late [ENTITY] (D.O.B. 24.11.90, aged 21 years) 2) [ENTITY] S/o Late [ENTITY] (D.O.B. 14.11.95 aged 16 years) (petitioner no. 2 being minor represented by his maternal Grand father as next friend/guardian Sh. Gyani Ram) R/o G-58, Gulshan Park, Nangloi, Delhi-110041 3) [ENTITY] S/o Sh. Lakhi Ram (Father) 4) Smt. [ENTITY] W/o Sh. [ENTITY] (mother) Both R/o H. No. 1750, Near BSNL Tower, Village Chiri, Distt. Rohtak, Haryana Petitioners Versus 1) [ENTITY] S/o Sh. Mahender Singh (Driver) R/o T-37, Singh Sabha Road, Shakti Nagar, Delhi-110007 2) [ENTITY] S/o Sh. Sushil Sharma (Owner) R/o. H. No. 33-B, Ganesh Nagar, Part-II, Shakarpur, Delhi-110092. 3) ICICI Lombard General Insurance Company Ltd. (Insurer) Regd. ICICI Bank Tower, Bandra-Kurla Complex, Bandra (East) Mumbai-400051 Respondents Date of institution 02.06.2008 Date of decision 02.06.2012 (Application u/s 166 and 140 of Motor Vehicles Act for grant of compensation) JUDGMENT:
It is the case of the LRs of the deceased Sh. [ENTITY] (herein after referred to as deceased) aged about 45 years that on 31.03.2007 at about 12.30 in the night when he was going on his motorcycle bearing No. DL-4SQ-3579 to his home after finishing his duty and when he reached near Sultanpuri Bus .
Terminal, all of a sudden an offending motorcycle no. DL-7SAK-5459 being driven by respondent no. 1 (driver) coming from wrong side in rash and negligent manner and hit the motorcycle of the deceased. Due to this impact, the deceased fell down on the road and sustained grievous and multiple injuries on his body and he died. He was taken to Sanjay Gandhi Memorial Hospital, Delhi, where the doctors declared him brought dead. It is further stated that the accident took place due to rash and negligent driving on the part of driver of offending motorcycle no. DL-7SAK-5459. A criminal case under [SECTION] [ACT] was registered against respondent no. 1 vide FIR No. 531/07 in police station Sultanpuri.
Petitioner no. 1 & 2 being major and minor son, petitioners no. 3 & 4 being father and mother of the deceased alleged that the deceased was working as Constable in Delhi Police and used to earn Rs. 12,123/- per month. He was look after the petitioners and the petitioners were dependent upon the deceased. They claimed sum of Rs. 35 lakhs as compensation alongwith interest from respondents being driver, owner and insurance company of the offending vehicle jointly and severally.
Initially parents of the deceased were not made a party in the present petition. Thereafter on an application u/[SECTION] [ACT] moved on their behalf, they were impleaded as petitioners in the present petition vide order dated 13.12.2010. At the time of filing of present petition, Smt. [ENTITY], widow of the deceased was also one of the petitioners, but due to her death, she was ordered to be deleted from the array of parties vide order dated 08.06.2011. Amended memo of parties was also filed by the petitioners.
Respondent no. 1 & 2 driver & owner of the offending vehicle in their joint written statement totally denied happening of an accident with their vehicle. Respondent no. 3 insurance company in its written statement admitted that the offending vehicle was insured with it but tried to avoid its liability on some technical grounds. It is stated that the deceased was plying his motorcycle rashly and .
negligently in contravention of traffic rules and at a very high speed. The accident took place due to sole negligence on the part of deceased himself.
On the basis of pleadings of the parties, following issues were framed on 31.03.2009 by my ld. Predecessor:
1) Whether deceased [ENTITY] received fatal injuries in the accident occurred on 31.03.2007 at about 12.30 (night) Near Sultanpuri bus terminal due to rash and negligent driving of R-1 of vehicle No. DL-7SAK-5459? OPP
2) Whether the petitioners are entitled for compensation, if so to what extent and from which of the respondents? OPP
3) Relief.
In order to prove their case, petitioners examined Smt. [ENTITY], widow of the deceased as PW-1, [ENTITY], Accountant Office Ashok Vihar, Delhi as PW-2 and eye witness Sh. [ENTITY] as PW-3. PW-1 in her examination tendered her affidavit in evidence as Ex.PW1/A and reiterated the facts as stated in the petition and proved the photocopy of I-card of deceased issued by Delhi Police as Ex.PW1/1, photocopy of ration card as Ex.PW1/2, photocopy of salary slip of the deceased as Mark-A, photocopy of DL of R-1 as Mark-B, photocopy of R.C. of offending vehicle as Mark-C, photocopy of insurance policy of offending vehicle as Mark-D and certified copies of criminal case record as Ex.PW1/3 (running into eight pages). Nothing incriminating has come out in the cross examination of PW-1.
PW-2 [ENTITY] from Account Office, Ashok Vihar, Delhi who proved the last drawn salary of the deceased as Ex. PW2/A. In the cross examination, PW-2 stated that the deceased was not covered for payment of income tax.
Petitioners further examined Sh. [ENTITY], who stated in his affidavit in evidence that on 31.03.2007 around 12 midnight he was coming from his .
shop no. N-829, Mangolpuri, Delhi to his home and when he reached near Sultanpuri Terminal, he saw a black motorcycle (Hero-Honda) bearing registration no. DL-7SAK-5459 which had hit a motorcycle from side, running in the same direction in which he was going towards his home. He followed that motorcycle and noted down the number, but the driver ran away. He noted down the number, but could not come back to the accident place because his wife was ill. After some days when he went to Sultanpuri Police station, he came to know that the person who died in the accident was police Constable [ENTITY]. He told to the police about the number of offending vehicle, but they did not give any attention to him. He further stated that the accident took place due to rash and negligent driving on the part of driver of offending vehicle. Nothing incriminating has come out in the cross examination of PW-3. He stated that after 3-4 days of the accident, he on his own went to the police station to enquire about the same. His statement was not recorded by the police. The offending motorcycle after overtaking him, had hit the motorcycle of the deceased. He admitted that no proceedings were conducted by the police in his presence. He denied the suggestion that he had not witnessed the accident. No evidence was led on behalf of the respondents.
I have heard counsel for the parties and have perused the entire record. My decision on the above mentioned issues is as under:
Issue No.1:
The onus of proving this issue was upon the petitioners. The principles to be followed in the case of motor accident claim have been laid down by Hon'ble Guwahati High Court in case cited as [PRECEDENT] wherein it is held 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 [PRECEDENT], Mr. Justice [ENTITY] and Mr. Justice [ENTITY], Division Bench of 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".
Counsel for respondent no. 3 insurance company has argued that there is a gap of one year after which the eye witness made the statement to the police. In the cross examination, he has stated that he did not knew family of the deceased or any of their relatives. During the course of arguments, counsel for petitioners has given reasonable and just explanation and explained the delay in registration of FIR and making statement that initially it was not made because the eye witness has to rush to his residence as his wife had vomited blood and required urgent attention and when he went to the police station he came to know about the residence of injured/deceased Constable [ENTITY], who has suffered injuries in the accident, but when he visited his residence, the whole family was under deep distress because of death of deceased and was crying. Subsequently, after many .
visits of family members of the deceased, he made the statement to the police regarding the accident. He was a natural witness and stood the test of cross examination of counsel for insurance company by giving natural and truthful answer which by nature is vague. Reliance can be placed upon the judgment of Hon'ble Madhya Pradesh, Indore Bench in [PRECEDENT], wherein it is held that "FIR is not a substantive piece of evidence and it cannot be placed on pedestal higher than the statement made before the court on oath". Petitioner has also placed on record the copies of criminal case which shows that police after investigation found that accident took place due to rash and negligent driving of the offending motorcycle no. DL-7SAK-5459 by respondent no. 1. PW-3 an eye witness in his statement disclosed how and in which manner accident took place and entirely blamed driver of offending motorcycle in causing the accident. Neither any effective cross examination of the eye witness PW-3 was conducted by the respondents nor they have brought on record any witness to rebut the contentions of petitioner, so its adverse inference has to be taken against them. The certified copy of charge sheet filed by the police for the offences punishable u/s [SECTION] [ACT] against the respondent no. 1 is also placed on record which reveals that he was prosecuted by the police for causing injuries to the deceased resulting into his death.
There is nothing on record to show that respondents no. 1 & 2 had lodged any complaint to any higher authority regarding alleged false implication of respondent no. 1 in criminal case. There is also no evidence on record to point out that respondents no. 1 & 2 had any enmity with deceased or his family members or eye witness or investigating officer to create possibility of false implication of respondent no. 1 in criminal case. I am of the view that deposition made by PW-3 about manner of accident is unimpeachable and trustworthy. Postmortem report of the deceased point out that his instant death took place in road accident. Accordingly it is held that accident had taken place with offending motorcycle no. DL-7SAK-5459 due to its rash and negligent driving by respondent no. 1 and there was no fault or .
negligence on the part of the deceased. In view of the above discussions, this issue is decided in favour of petitioners and against the respondents.
Issue no. 2:-
Deceased expired on 31.03.2007 in the hospital. Deceased had left behind his wife, one major son, one minor son and his parents, but during the pendency of this case, his wife also died on 23.05.2011 and her death certificate was filed by the petitioners. Deceased was aged about 43 years at the time of accident as per his I-card Ex.PW1/1. It is alleged that the deceased was working as Constable in Delhi Police and as per Ex.PW2/A his last drawn salary was Rs. 15,016/- per month. Accordingly this amount of Rs. 15,016/- p.a. has to be taken into account for the purpose of calculations of the dependency.
As per the official I-card of the deceased Ex.PW1/1 issued by Delhi Police, the date of birth of the deceased is 07.09.1963 which means that on the date of accident, he was of the age of approximately 43 years. Hence in view of the judgment of Supreme Court given in [ENTITY] vs. DTC 2009 ACJ 1298, multiplier of 14 has to be applied upon the income of the deceased.
Since deceased was a permanent employee in Delhi Police at that time as per PW-2, so keeping in view his age approximately 43 years at the time of death, future prospectus of 30% has to be added in his income as per [ENTITY]'s decision. Hence monthly income of deceased comes to Rs. 22,524/- (Rs. 15,016 + 30%).
Deceased had left behind one major son, one minor son and his parents. Father is not treated as dependent upon the deceased, so accordingly it can be said that three petitioners were dependent upon the deceased at the relevant time. In view of the decision of [ENTITY]'s case, the deduction of 1/3 th the salary of deceased has to be made upon his personal expenses. Hence after deducting 1/3th of the amount from monthly income of Rs. 22,524/-, monthly dependency .
comes to Rs. 15,016/- per month. Accordingly, in this case, loss of dependency is assessed at Rs. 25,22,688/- (Rs. 15,016 x 12 x 14).
Petitioners have not brought on record any document regarding expenses incurred on funeral and last rites of the deceased. It is a judicial noticeable fact that normally some expenses are incurred upon cremation, Chotha or Theharvin ceremonies etc. Hence, I deem it proper to grant lump sum Rs. 25,000/- as funeral charges.
Petitioners in my view are also required to be awarded sum of Rs. 1,00,000/- towards loss of estate (Rs. 25,000/- each to four petitioners). Another sum of Rs. 1,00,000/- to both the children i.e. petitioner no. 1 & 2 (Rs. 50,000/- each to both petitioners) and Rs. 50,000/- to the parents of the deceased i.e. petitioner no. 3 & 4 (Rs. 50,000/- each to both petitioners) towards loss of love and affection, loss of company, parental guidance and encouragement, trauma and loss of other discomfort is awarded to all the petitioners after relying upon the judgment of Hon'ble Supreme Court in [PRECEDENT] and the judgment of Hon'ble High Court in [PRECEDENT].
Respondent no. 3 insurance company could not bring on record any evidence to point out that it is not liable to pay compensation amount as assessed by the court or any term or condition of the insurance policy was breached by the insured or it has any limited liability. Keeping in view the existence of valid insurance policy, respondent no. 3 alone becomes entitled to pay entire compensation amount.
In view of the above discussions, this issue is decided in favour of petitioners by holding that they are entitled to get the following total compensation from the respondent no. 3 only:
1). Loss of dependency Rs. 25,22,688/-
2). Funeral charges Rs. 25,000/-
3). Loss of estate Rs. 1,00,000/-
4). Loss of love & affection & company etc. Rs. 1,50,000/-
Total Rs. 27,97,688/-
Hence petitioners are entitled to get Rs. 27,97,688/- as compensation from the respondent no. 3 alongwith interest at the rate of 9% p.a. from the date of institution of the petition i.e. 02.06.2008 till realization, as per the judgment titled as [PRECEDENT].
Issue no. 3 (Relief):-
On the basis of findings given above, present petition is disposed off. Respondent no. 3 insurance company is directed to pay within 30 days a sum of Rs. 27,97,688/- to the petitioners along with interest at the rate of 9% p.a. from 02.06.2008 till this amount is fully realized. If the entire awarded amount alongwith accrued interest is not paid to the petitioners within 30 days, insurance company will be liable to pay the interest @ 12% p.a. from the date of institution of the petition till realization.
It is further ordered that out of the compensation amount, 70% amount be given to petitioner no. 1 & 2 being sons of the deceased in equal share which be deposited in the form of [ENTITY] in the name of petitioner no. 2 till he attain the age of majority and in the name of petitioner no. 1 in [ENTITY] for five years with right to withdraw monthly interest through saving bank account.
Petitioner no. 3 being father of the deceased be paid sum of Rs. 2,00,000/- which be deposited in his name in [ENTITY] for a period of five years with right to withdraw monthly interest through his saving bank account.
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Remaining amount alongwith accrued interest on the award amount shall be deposited in the name of petitioner no. 4 in [ENTITY] for a period of five years with right to withdraw monthly interest through her saving bank account. These [ENTITY]s be got prepared from State Bank of India, Rohini Courts, Delhi branch and shall not be encashed without permission of the court. No loan or advance shall allow to be taken on these [ENTITY]s.
Respondent no. 3 Insurance company to pay further sum of Rs. 75,000/- as counsel fee and Rs. 8,000/- as out of pocket expenses to counsel for petitioner Ms. [ENTITY], Adv. Enrollment No. D-1665/03, Adv. by preparing separate cheque in her name as per the judgment of Hon'ble Mr. Justice [ENTITY] titled [PRECEDENT].
Respondent no. 3 insurance company is directed to prepare the separate cheques of the compensation amount as per above order. Copy of this judgment be given to petitioners and counsel for respondent no. 3 insurance company for compliance. File be consigned to record room.
Announced in the open (D.K. MALHOTRA) Court on 02.06.2012 JUDGE, MACT (OUTER-II) DELHI