IN THE COURT OF MS.[ENTITY], JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL02, NEW DELHI Suit Number : 619/08. Unique Case ID Number : [CASE NUMBER]. 1. Mr.[ENTITY] son of Mr.Lilu Ram 2. Ms.[ENTITY] wife of Mr.[ENTITY] 3. Ms.[ENTITY] daughter of Mr.[ENTITY] 4. Master [ENTITY] son of Mr.[ENTITY] All residents of H.No.178D, Village Basant Nagar, PO & PS Vasant Vihar, New Delhi110057. Petitioners. versus 1. Mr.[ENTITY] son of Mr.Mardan Resident of Aro Mohalla, Kathera Road, Varati Near Madin Mandir, PS Dadri, Bulandshar, Distt. Ghaziabad, U.P. New Delhi. (Driver). 2. Mr.[ENTITY] and 3. Mr.[ENTITY] Both sons of Mr.Jumma and Mr.Akbar Khan Both residents of Village Devi PuraI, Bulandshahar, Distt. Ghaziabad, U.P.(Owners). 4. The [ENTITY] Division Office321600 38, Navyug Market, Ghaziabad201001. Through its Divisional Officer. (Insurer). Respondents.
[CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 1 of 44 Date of institution : 24.08.2005. Arguments concluded on : 02.11 2010. Date of judgment and award : 02.11.2010.
Appearances: Mr. [ENTITY], counsel for all the petitioners.
Respondent numbers 1, 2 and 3 are ex parte.
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 Mr.[ENTITY], Ms.[ENTITY], Ms.[ENTITY] and Master [ENTITY], all the petitioners, against Mr.[ENTITY], Mr.[ENTITY], Mr.[ENTITY] and The [ENTITY], all the respondents for compensation regarding the death of Mr.[ENTITY] in a road traffic accident. 2 It is averred by the petitioners namely Mr.[ENTITY] (father), Ms.[ENTITY] (mother), Ms.[ENTITY] (sister) and Master [ENTITY] (brother), all the petitioners, that on 18.07.2005 at about 7.45 PM, Mr.[ENTITY], the deceased, was coming back with his relative at Dadri, U.P. on Scooter bearing registration [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 2 of 44 number DL5SN4997 and when he reached at GT Road, near Dharam Mill, Village Nistoli, PS Dadri, a truck bearing registration number UPH0568, driven by respondent number 1 in a rash and negligent manner and at a high speed hit the deceased, while respondent number 1 was overtaking another vehicle coming from the opposite side. After hitting, the driver of the offending vehicle, respondent number 1, ran away from the spot immediately leaving the deceased as well as the truck at the spot. The deceased suffered multiple injuries which resulted in his death. The deceased was removed by PCR to MMG Hospital, Ghaziabad and later on his relatives took him to Yasoda Super Speciality Hospital and Heart Institute, Ghaziabad. The deceased remained in the hospital for approximately one hour and thirty minutes and an expenditure of approximately Rs.10,000/ was incurred for his medicines and other things. The deceased was aged 20 years and was a good photographer/camera man and was earning Rs.5400/ per month from his employment with Rahul Studio and Angna Video Mixing. [CASE NUMBER] under [SECTION] of the [ACT] (hereinafter referred to as the [ACT]) PS Dadri JanpadG.B.Nagar, U.P. was lodged about the accident. The injuries suffered by the deceased in the [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 3 of 44 accident caused his death. All the respondents being the driver, owner, Insurance Company of the offending vehicle are liable to pay compensation under the [ACT]. The petitioners have claimed compensation of Rupees Fifteen Lacs. 3 Summons of the case were served upon all the respondents. Respondent numbers 1, 2 and 3 had been served but they failed to appear before the Court. Respondent number 1 was proceeded ex parte vide order dated 05.09.2006. Respondent numbers 2 and 3 were proceeded ex parte vide order dated 23.04.2007. Only respondent number 4 is contesting the case. 4 In the written statement filed on behalf of respondent number 4, it has been averred that the petition is not maintainable as the deceased did not die due to the injury sustained by him in the accident and there is no documentary proof regarding the cause of death of the injured. The documents like FIR, site plan, MLC, age, occupation of the deceased/injured etc. have not been filed. Respondent number 4 had admitted that the offending vehicle i.e. [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 4 of 44 truck bearing registration number UHP0568 was insured with the respondent number 4 in the name of Mr.[ENTITY] and Mr.[ENTITY], respondent numbers 2 and 3, vide policy number 321600/31/05/03339, valid from 04.07.2005 to 03.07.2005. Respondent number 4 has prayed for dismissal of the petition. 5 The learned predecessor of this court did not award any interim compensation to the petitioners.
6 Issues have not been framed formally by the learned predecessor of this Court and evidence was recorded. 7 In order to proof their case petitioners have examined Mr.[ENTITY], an eye witness of the accident, as PW1, petitioner number 1, Mr.[ENTITY], as PW2 and Mr.[ENTITY], employer of the deceased Mr.[ENTITY], as PW3. Respondent number 4 has not lead any evidence in support of its contentions.
[CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 5 of 44 7a PW1, Mr.[ENTITY], filed his affidavit as his examination in chief and has deposed on the lines of the petition. He has deposed that on 18.07.2005 at about 7.45 PM, he along with his friend, Mr.[ENTITY], the deceased, were coming on his two wheeler bearing registration number DL5SN4997 (Vespa Scooter) and when they reached Dharm Mill G.T.Road, Village Nistoli, PS Dadri, U.P., suddenly the offending vehicle bearing registration number UHP0568 (Truck) driven by respondent number 1, owned by respondent number 2 and 3 and insured with respondent number 4, driven in a rash and negligent manner and at a high speed came and hit the scooter due to which the deceased and the witness received injuries and the deceased died due to the injuries suffered by him. The driver fled from the spot. He saw the offending vehicle before the accident at a distance of 10 to 15 paces. The offending vehicle was coming at a fast speed overtaking the other vehicles plying on the road.
8 PW2, Mr.[ENTITY], petitioner number 1, in his affidavit filed in her examination in chief has deposed on the lines of the petition submitting that Mr.[ENTITY] who was his son [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 6 of 44 had expired due to the injuries received by him in the accident caused by the offending vehicle i.e. truck bearing registration number UHP 0568, driven in a rash and negligent manner and at a very high speed by respondent number 1, owned by respondent numbers 2 and 3 and insured with respondent number 4. FIR number 332/05 under [SECTION] of the [ACT] with Police Station Dadri, U.P. was registered and he has proved the copies of the same, charge sheet, naksha moka/site plan and post mortem report as Ex.PW2/1 to Ex.PW2/8. He has also proved the original receipts of cremation and medical bills, receipts of [ENTITY] as Ex.PW2/9 to Ex.PW2/20. The DL, ration card, voter I card of the deceased are Ex.PW2/21 to Ex.PW1/22. The deceased was working with Rahul Studio and [ENTITY] Video Mixing with Proprietor Mr.[ENTITY] at Ghaziabad, U.P. at a monthly salary of Rs.5,400/. In his cross examination, he has deposed that he is not an eye witness. His son was doing the job of cameraman/photographer.
9 PW3, Mr.[ENTITY], the employer of the deceased, has deposed on oath that Mr.[ENTITY] was working with him as photographer at a monthly salary of Rs.5,400/ and he [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 7 of 44 has issued a certificate in this regard which is Ex.PW3/1. This witness has not been cross examined by respondent number 4. 10 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. Despite due opportunities, neither respondent number 4 filed its written arguments nor its counsel appeared for advancing verbal arguments. Therefore, the matter is being considered as per law. 11 After, careful perusal of the record, my findings on the disputed facts are as follows:
RASH AND NEGLIGENT DRIVING OF RESPONDENT NUMBER 1 RESULTING IN DEATH OF THE DECEASED:
12 As already mentioned above the issues were not formally framed by the learned predecessor of the Court and orders for leading evidence were passed.
[CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 8 of 44 13 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.
14 [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 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 subsection in respect of the permanent disablement of any person shall be a fixed sum of (twentyfive thousand rupees). (3) In any claim or compensation under subsection (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 [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 9 of 44 vehicle or vehicles concerned or of any other person. (4) A claim for compensation under subsection (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 subsection (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]
15 [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
3. where death has resulted from the accident, by all or [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 10 of 44 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 subsection (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.
[CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 11 of 44 16 I find on perusal of the certified copies of the criminal case record of FIR number 332/05 under [SECTION] A of the [ACT] with Police Station Dadri, U.P., the copies of the same, charge sheet, naksha moka/site plan and post mortem report as Ex.PW2/1 to Ex.PW2/8 that in the final report under [SECTION] [ACT], the offending vehicle is mentioned as truck bearing registration number UHP0568.
17 The claim of the respondent number 4 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.
18 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 [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 12 of 44 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]).
19 The Supreme Court in its judgment in the case reported as [PRECEDENT]., 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 in plain cases, culpability must be inferred from circumstances where it is fairly reasonable.
20 In order to prove the rash and negligent driving of the [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 13 of 44 offending vehicle i.e. truck bearing registration number UHP0568 by respondent number 1 in the accident, the petitioners have produced and proved the certified copy of FIR number 332/05 under [SECTION] of the [ACT] with Police Station Dadri, U.P. against respondent number 1. The charge sheet, naksha moka/site plan and post mortem report, Ex.PW2/1 to Ex.PW2/8, have also proved on the record.
21 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.
22 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 2 have categorically deposed that respondent [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 14 of 44 number 1 had caused the accident driving the offending vehicle i.e. truck bearing registration number UHP0568 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 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, 2 and 3 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 [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 15 of 44 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 nondiscrepant. 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 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 [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 16 of 44 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 UHP0568 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 grievous injuries.
29 PW1 is an eye witness of the accident and has categorically deposed on oath regarding the offending vehicle being [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 17 of 44 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 4 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 [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 18 of 44 Police Officer to the Tribunal is to be treated as an application for compensation by the claims tribunal. Once the chargesheet 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 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 grievous 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. [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 19 of 44 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 number 332/05 under [SECTION] of the [ACT] with Police Station Dadri, U.P. against respondent number 1 which supports the claim of the petitioners that it was due to rash and 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 truck bearing registration number [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 20 of 44 UHP0568, FIR number 332/05 under [SECTION] of the [ACT] with Police Station Dadri, U.P., which hit scooter bearing registration number DL 5 SN 4997 on which the deceased Mr.[ENTITY] and eye witness, PW1, Mr.[ENTITY] were travelling.
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 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 [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 21 of 44 his death due to road accident caused by the offending vehicle i.e. truck bearing registration number UHP0568 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 UHP0568 being driven by respondent number 1 in a rash and negligent manner.
38 I hereby hold that Mr.[ENTITY] suffered fatal injuries on 18.07.2005 due to rash and negligent driving of truck bearing registration number UHP0568 on the part of respondent number 1.
WHETHER PETITIONERS ARE ENTITLED TO ANY COMPENSATION AND FROM WHOM:
[CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 22 of 44
39 The petitioners have claimed that they are the only legal representatives of the deceased Mr.[ENTITY]. PW2 has also similarly deposed in her affidavit and there is no cross examination regarding the same. It is clear that Mr.[ENTITY] (father), Ms.[ENTITY] (mother), Ms.[ENTITY] (sister) and Master [ENTITY] (brother) are the only legal heirs of the deceased. 40 However, in view of 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 [PRECEDENT]; 2009 ACJ 129 and also relied upon in the Delhi High Court in its order dated 08.05.2009 in [CASE NUMBER] [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 [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 23 of 44 clarification to the [SECTION], it has been observed that the father and siblings (brother and sister) of the deceased are not the dependents of the deceased and are not entitled to any compensation under the [ACT].
41 Therefore, only petitioner number 2 being the mother of the deceased is entitled to the compensation under the [ACT]. LOSS OF DEPENDENCY:
42 The petitioner number 1, as PW2, has deposed in his affidavit filed as his examination in chief that the deceased, Mr.[ENTITY], who was aged 20 years on the date of accident. There is nothing brought on the record which could show otherwise as there is nothing material in his cross examination by respondent number 4 which has also not led any evidence of its own. 43 Therefore, keeping in view the evidence of petitioner number 1, it is clear that the deceased was aged 20 years at the time of his demise.
[CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 24 of 44 44 Further, as regards, his income, it is averred in the petition and deposed in the evidence of PW2 as well as PW3 that the deceased was working with Rahul Studio and [ENTITY] Video Mixing with Proprietor Mr.[ENTITY] at Ghaziabad, U.P. at a monthly salary of Rs.5,400/ as a photographer/cameraman and the certifictae of his employer is also proved as Ex.PW3/1.
45 In the judgment reported as [PRECEDENT], it was held that the multiplier to be adopted is to be determined on the basis of the age of the claimant and the age of the deceased which ever is higher.
46 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. [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 25 of 44 supremecourtofIndia.nic.in and also is reported in as [PRECEDENT] and also relied upon in the Delhi High Court in its order dated 08.05.2009 in [CASE NUMBER] [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 [SECTION], it has been observed in paragraph number 9 of the above judgment that:
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:
[CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 26 of 44 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 family.
[CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 27 of 44 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 47 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 [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 28 of 44 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], 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 [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 29 of 44 age.
48 In paragraph number 19 of the [ENTITY]'s judgment, it is observed:
In [ENTITY] 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 [SECTION] for claims under [SECTION] of [ACT] (with appropriate deceleration after 50 years :
[CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 30 of 44 Age of the Multiplie Multiplie Multiplier Multiplier Multiplier deceased r scale as r scale as scale in specified actually envisaged adopted Trilok in second used in in by [ENTITY] as column in Second [ENTITY] clarified in the Table Schedule to [ENTITY] in [ACT] schedule to ( as seen M. V Act from the quantum of compensatio n s 49 In para 25 of [ENTITY]'s judgment, it was observed that: [CASE NUMBER]. Unique [CASE NUMBER]. [ENTITY] and others versus [ENTITY] and others. Page 31 of 44
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 onethird, nor onefourth as assessed by the High Court, but oneeighth. We agree with the contention that the deduction on account of personal living expenses cannot be at a fixed onethird 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 onefifth is deducted as the personal and living expenses of the 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/.
[CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 32 of 44 50 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 onethird (I/3rd) where the number of dependent family members is 2 to 3, oneforth (1/4th) where the number of dependent family members is 4 to 6, and onefifth (1/5th) where the number of dependent family members exceed six.
51 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/.
52 The age of the mother of the deceased, petitioner number 2 was 39 years as on the date of demise of Mr.[ENTITY]. The copy of the elctoral card of petitioner number 2, Ex.PW2/22C [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 33 of 44 shows that her age as on 01.01.1994 is 28 years which makes her age in the year 2005 as 39 years.
53 As the age of the mother of the deceased at the time of his demise was 39 years, the multiplier of 14 is to be applied. 54 The personal and living expenses of the deceased would be one half of his income, in terms of [ENTITY]'s judgment. 55 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.5,400/ x 12 (annual income) x 14 (multiplier) x 1/2 (personal expenses) which comes to Rs.4,53,600/.
56 Hence, the petitioners number 2 is entitled to Rs.4,53,600/ for loss of financial dependency. LOSS OF LOVE AND AFFECTION:
[CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 34 of 44
57 The petitioner number 2 has lost her young son aged 20 years 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 son that petitioner number 2 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.10,000/ to the petitioner number 2 towards loss of love and affection. MEDICAL EXPENSES:
58 The petitioners have filed and proved the medical bills of Rs.3,420/ and the same are not controverted by respondent number 4 nor any evidence to the contrary is led by respondent number 4. 59 Therefore, Rs.3,420/ is awarded under the heading of medical expenses to the petitioners.
LOSS OF FUTURE PROSPECTS:
[CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 35 of 44
60 The petitioners have although claimed loss of future prospects, but in view of [ENTITY]'s case, since the deceased was employed privately, I am not inclined to grant any amount under the heading of loss of future prospects.
PAIN AND SUFFERING:
61 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:
62 Rs.10,000/ is awarded on account of funeral expenses. LOSS TO ESTATE:
63 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. [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 36 of 44 TOTAL COMPENSATION:
64 In the petition, the petitioner number 2 is entitled to the following compensation in the present petition:
Loss of dependency : Rs.4,53,600/. Loss of love and affection : Rs.10,000/ Medical expenses : Rs.3,420/. Loss of future prospects : Nil. Pain and suffering : Nil. Funeral expenses : Rs.10,000/ Loss to estate : Rs.10,000/ Total compensation : Rs.4,87,020/. LIABILITY OF RESPONDENT NUMBER 3 65 may be mentioned here that the fact that the offending
vehicle was insured with respondent number 4 by respondent numbers 2 and 3 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.
66 All these facts, in totality, indicate that the offending [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 37 of 44 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 4.
67 Therefore, respondent number 4, being the insurer of the offending vehicle, The respondent number 4 has failed to bring anything on the record to show that the permit of the offending vehicle was not for Delhi or that it was not valid. 68 The liability of respondent number 4 cannot be avoided by it as it is liable to make the payment of the compensation under the [ACT] in the claim petition.
69 There is no clause in the insurance policy which absolves respondent number 4 of its liability to pay compensation as it is clear that no term or condition of the same is violated. Respondent number 4, in the circumstances, is liable to pay absolutely and is not entitled [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 38 of 44 to any recovery rights.
LIABILITY OF RESPONDENTS NUMBERS 1, 2 AND 3:
70 Respondents numbers 1, 2 and 3 being the driver and owner/insured of the offending vehicle respectively are liable to pay compensation to the petitioners.
RELIEF:
71 Petitioner number 2 entitled to Rs.4,87,020/ as compensation. The amount is rounded off to Rs.4,87,100/. No interim compensation was awarded to the petitioners by the learned predecessor of this Court. The total compensation which now is to be given to the petitioner number 2 is is Rs.4,87,100/. The petitioner number 2 is also entitled to the interest at the rate of 7.5% per annum from the date of filing of petition i.e. 24.08.2005 till its realization.
[CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 39 of 44 72 Out of this amount of Rs.4,87,100/, Rs.3,00,000/ be given to the petitioner number 2, Ms.[ENTITY], in cash for her utilization and the remaining amount of Rs.1,87,000/ be kept in the form of FDR with a nationalized bank for the period of three years without the facility of advance / loan or withdrawal. However, the petitioner number 2 will be entitled to monthly or quarterly interest as applicable.
73 Respondent number 4, 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/driver/owner of the offending 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. 74 In case the Insurance Company fails to do so, General Manager of Insurance Company will file reasons for noncompliance. In case of further delay, the Insurance Company will deposit the cheque along with the cost of Rs.5,000/ without any further [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 40 of 44 directions as per judgment of [PRECEDENT].
75 [ENTITY] will report to the undersigned if the cheques in this case are not received within 30 days of passing of this judgment. [ENTITY] to note the particulars of the award amount etc. in his register today.
76 Copy of the order be given dasti to respondent number 4 for compliance and copy of this order and information be also sent to General Manager of Insurance Company.
77 The petitioner number 2 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 petitioner number 2 within seven days to the [ENTITY]. [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 41 of 44 78 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 claimant 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 claimant after due verification and the Bank shall issue photo identity Card /Pass Books with attested photographs to claim to facilitate her identity.
(4) No cheque book be issued to the claimant 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 claimant alongwith the photocopy of the FDRs. (7) The original Fixed Deposit Receipts shall be handed over to the claimant 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 [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 42 of 44 to the convenience of the claimant.
(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 4 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). 79 [ENTITY] to keep the copy of Award in a miscellaneous file for awaiting compliance report from all concerned, which be put up on 03.12.2010.
80 Copy of the judgment be given, dasti, to the counsel for the respondent number 4 for compliance. One copy of the judgment also be given to the counsel for the petitioners, dasti, as requested. [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 43 of 44 81 The file be consigned to record room.
Announced in the open Court on ([ENTITY]) this 02nd day of November, 2010. Judge, MACT02, New Delhi. [CASE NUMBER].
Unique [CASE NUMBER].
[ENTITY] and others versus [ENTITY] and others. Page 44 of 44