IN THE COURT OF SH. DAYA PRAKASH, ASJ-02/FTC, NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI ID No. 02403C0589292006 Suit No. 22/12 1. Mrs. [ENTITY] W/o Sh. Kallu Singh D/o Late Sh. [ENTITY] 2. Mrs. [ENTITY] W/o Sh. Sunil Singh D/o Late Sh. [ENTITY] Both r/o. 320-A, Village Dera Fatehpur, PS: Mehrauli, New Delhi. Petitioners Versus 1. Sh. [ENTITY], S/o Sh. Maharaj Singh R/o H. No. 1057, Puran Enclave, Old Faridabad, Haryana. 2. The [ENTITY] Kanchanjanga Building, Connaught Place, New Delhi. 3. Smt. [ENTITY] W/o Late Sh. [ENTITY] 4. Sh. [ENTITY] [CASE NUMBER] 1/21 S/o Late Sh. [ENTITY] 5. Sh. [ENTITY] S/o Late Sh. [ENTITY] 6. Sh. [ENTITY] S/o Late Sh. [ENTITY] 7. Sh. [ENTITY] S/o Late Sh. [ENTITY] 8. Km. [ENTITY], D/o. Late Sh. [ENTITY] (Respondents no.7 and 8 being minors through their mother and natural guardian respondent no.3) Respondents no.3 to 8 are R/o. Village Jaunedpur Distt. Gautam Budh Nagar, U.P.) Respondents Date of institution of the case : 07.11.2006 Date received by transfer to this Court : 12.01.2012 Date when the case reserved for judgment : 20.02.2014 Date of announcement of judgment : 15.03.2014 JUDGMENT
15.03.2014
1. By this judgment, I shall dispose of the present petition under [SECTION] and [SECTION] of the [ACT] for grant of compensation.
2. As per petition, petitioners are the daughters of deceased Sh. [ENTITY] while the respondents no.3 to 8 are widow, sons and daughter of deceased which are stated to be performa parties.
It is further stated that on 06.03.2006 at about 1pm, deceased [ENTITY] was travelling as a pillion rider on motorcycle No. HR-51-P- 5380 and he was proceeding towards his house from Khanpur, U.P. Sh. [ENTITY]respondent no.1 was driving the said motorcycle. When the motorcycle reached at near Village Bhagpur, District Gautam Budh Nagar, UP then the motorcycle driver in order to save a cyclist lost control of motorcycle and the motorcycle fell down on the road. As a result of forceful impact the deceased who was travelling as a pillion rider also fell down on the road and sustained serious/grievous injuries all over the body. The deceased was taken to Meenakshi Hospital who referred the injured to Kailash Hospital. Keeping in view the serious condition of injured, the doctors of Kailash Hospital asked the petitioners to take the deceased to All India Institute of Medical Sciences at New Delhi (AIIMS). Accordingly, injured was got admitted to AIIMS hospital and ultimately, got expired on 14.03.2006 in said hospital.
It is further stated that accident in question had arisen out of the use of motorcycle No. HR-51-P-5380. It is further stated that at the time of accident, the deceased was of 60 years of age and was farmer by profession and used to earn Rs.40,000/- per annum, It is further stated that petitioners suffered from mental pain and agony and from economic loss also due to the sudden demise of the deceased.
It is further stated that all the respondents are jointly and severally liable to pay compensation to the petitioners.
Hence, it is prayed that an award for a sum of Rs.20 lacs be passed in favour of the petitioners and against the respondents with interest at the rate of 18% per annum from the date of filing of petition till realization and cost under [SECTION] of the [ACT].
3. Despite service, respondent no.1/driver failed to appear before the Court and therefore, he was proceeded ex-parte vide order dated 17.03.2007.
4. Respondent no.2/Insurance filed the written statement wherein respondent no.2 admitted that motorcycle bearing No. HR-51P- 5380 was insured in the name of Sh. [ENTITY] bearing policy No. [CASE NUMBER] valid from 23.12.2005 to 22.12.2006.
It is contended by respondent no.2 that this Court has no jurisdiction to try and entertain the present petition. It is further contended that the alleged accident had taken place in Gautam Budh Nagar (UP) and wife and sons of deceased are resident of Gautam Budh Nagar (UP) only but the present petition has been deliberately filed by the married daughter of the deceased, who were not dependent on the deceased, in order to invoke the jurisdiction of this Court.
It is further contended that present petition is liable to be dismissed as no accident took place by alleged offending vehicle on the alleged date and time and because of this reason FIR was not registered against anyone.
It is furthers contended that Insurance Company is not liable to pay any compensation as the deceased was pillion rider on the alleged offending vehicle and the pillion rider is not covered under the policy of insurance.
5. Respondents no.3 to 8 were served, however, they choose not to file written arguments.
6. Vide order dated 25.04.2007, the following issues were framed by Ld. Predecessor of this Court:-
1. Whether [ENTITY] sustained fatal injuries in the accident on 06.03.2006 arising out of use of motor vehicle No. HR-51-P-5380?
2. To what amount of compensation the petitioner is entitled to and from whom?
3. Relief.
7. In evidence PW1/petitioner no.1 [ENTITY] tendered her evidence by way of affidavit Ex.PW1/A and got exhibited the medical bills as Ex. PW1/1 (colly).
In cross examination on behalf of respondent no.2/Insurance, PW1 deposed as under:-
"She is not an eye witness to the accident. She has not placed on record any document showing earnings of her deceased father. She denied the suggestion that she is deposing falsely while stating that his deceased father used to hand over his entire earning for household expenses. She also denied the suggestion that Rs.35,000/- were not spent on the treatment of his deceased father."
8. PW2 [ENTITY], MHCR in PS Defence Colony, New Delhi is a summoned witness who got exhibited the entry pertaining to DD No. 30 as PW2/A and DD No.36 as PW2/B.
9. PW3 Sh. [ENTITY], Record Clerk, AIIMS Hospital, New Delhi is also a summoned witness who got exhibited the Postmortem Report of deceased [ENTITY] as Ex.PW3/A.
10. Sh. [ENTITY]respondent no.1 was produced in the witness box as petitioner's witness and deposed as PW4. In his examination-in-chief, PW4 supported the version as averred by the petitioners in the petition.
In cross-examination on behalf of respondent no.2, PW4 deposed that accident did not occur due to the collusion of the motorcycle with the bicycle, however, accident was occurred as the bicycle suddenly came before the motorcycle from the left side and he applied the break immediately to avoid the accident and in this process the motorcycle was dis-balanced and he as well as pillion rider fell on the road. PW4 admitted that there is no criminal case pending against him regarding the present case. PW4 further admitted that after the accident the police had not seized the RC and driving license of motorcycle and police had also not arrested him in connection with said accident. PW4 denied the suggestion that as deceased was died due to some other reasons, therefore, no police case was made in the present case.
11. R6W1/Respondent no.6 Sh. [ENTITY], son of deceased [ENTITY]/brother of both petitioners tendered his evidence by way of affidavit and got exhibited the Letter of Police Post AIIMS sent to PS Dankaur Ex.R6W1/1, the Report lodged with Police at Dankaur Ex.R6W1/3 and also Receipt of Dead Body of deceased father Ex.R6W1/ A1 and photocopy of application given to SO, PS Dankaur, Gistt. Gautam Budh Nagar, UP as Ex.R6W1/A2.
In cross-examination on behalf of respondent no.2, R6W1 deposed that he accompanied his father to Kailash Hospital and AIIMS Hospital after the accident and he had placed on those documents alongwith his affidavit which were in his possession. R6W1 further stated that he had not filed any document alongwith his affidavit regarding treatment given to his father at Kailash Hospital and AIIMS Hospital and further he had also not placed any medical bills.
In cross-examination on behalf of petitioners, R6W1 admitted that apart from him and other LRs of deceased [ENTITY], the petitioners no.1 and 2 are also entitled for the share of compensation, being the LRs of deceased [ENTITY].
12. Arguments already heard.
13. Respondent no.2 also filed written arguments wherein it is stated that as per the Apex Court's decision in case titled [PRECEDENT] only those cases are maintainable under [SECTION] A of [ACT] where the income is upto Rs.40,000/- per year and the cases where the income is more than Rs.40,000/- per years are only maintainable under [SECTION] of [ACT] and therefore, the present petition under [SECTION] of [ACT] is not maintainable and be dismissed.
14. Having heard the rival contentions advanced and the written arguments placed on record and after perusal the evidence/documents on record, my issuewise findings are as under: ISSUE NO.1 "Whether [ENTITY] sustained fatal injuries in the accident on 06.03.2006 arising out of use of motor vehicle No. HR-51-P-5380?
I have seen the file and my inference is that [ENTITY] sustained fatal injuries in the accident on 06.03.2006 arising out of use of motor vehicle No. HR-51-P-5380, on the following grounds:-
firstly, in para No. 22(i) of application/petition under [SECTION] and [SECTION] of the [ACT] for grant of compensation, it was stated that on 06.03.2006, deceased [ENTITY] was travelling as pillion rider on motorcycle No. HR-51-P-5380 and he was proceeding towards his house from Khanpur, U.P. Sh. [ENTITY] respondent no.1 was driving the said motorcycle. When the motorcycle reached at near Village Bhagpur, District Gautam Budh Nagar, UP then the motorcycle driver in order to save a cyclist lost control of motorcycle and the motorcycle fell down on the road. As a result of forceful impact the deceased who was travelling as a pillion rider also fell down on the road and sustained serious/grievous injuries all over the body. Initially, deceased was taken to Meenakshi Hospital but said hospital referred the injured to Kailash Hospital and from there, the injured was further referred to AIIMS hospital. The deceased was taken to AIIMS Hospital as per advice and remained admitted in the hospital upto 14.03.2006, however, the deceased scummed to the injuries on 14.03.2006 in the said hospital. The postmortem on dead body of deceased was got done in the AIIMS Hospital.
The above mentioned statement/averment is reiterated in the affidavit of PW1 Ms.[ENTITY] who is petitioner no.1. Perusal of cross- examination of PW1 shows that no question, questioning the manner of accident was put to her. Mostly all the questions which were put were with respect to income of deceased [ENTITY] or that claim is excessive or exorbitant.
Secondly, PW2 [ENTITY] brought the summoned record i.e. DD register No.A pertaining to entry dated 06.03.2006 and 15.03.2006. PW2 deposed that as per Register the DD No. 30 was registered on the information received from AIIMS hospital that one person [ENTITY] was got admitted in injured condition from UP. This DD was marked to ASI [ENTITY] for its investigation and got exhibited the copy of same as Ex.PW1/A. PW2 further deposed that as per registered DD No.36 was registered on the information given by Duty Constable from AIIMS Hospital regarding the death of injured [ENTITY] on 15.03.2006 and got exhibited the copy of same as Ex.PW2/B. Thirdly, PW3 is Sh. [ENTITY], Record Clerk, AIIMS Hospital, New Delhi who proved the Postmortem Report of deceased [ENTITY] as Ex.PW3/A and PW4 is Sh. [ENTITY]respondent no.1 who was driving the motorcycle bearing No. HR-51-P-5380 at the relevant date and time and he corroborated all the averments made in the claim petition as well as in affidavit of PW1.
In view of the above discussions, it is proved that [ENTITY] sustained fatal injuries in the accident on 06.03.2006 arising out of use of motor vehicle No. HR-51-P-5380. The issue no.1 is decided accordingly.
ISSUE NO 2: "Whether the petitioners are entitled for
compensation? If so, to what amount and against which of the respondents?"
After perusal of the petition, reply/WS, evidence and documents on record, my inference is that respondents no.3 to 8 be entitled to the compensation as per following paras and grounds:-
Firstly, the present petition has been filed by Mrs. [ENTITY] and Mrs. [ENTITY]. Both are married daughter of deceased [ENTITY]. Despite petitioners no.1 and 2 being class-1 heirs under [ACT] are not entitled to be treated as dependent of deceased father under the [ACT]. Hence, petitioners no.1 and 2 are not entitled to any compensation.
Secondly, respondent no.3 is the wife, respondents no.4 to 7 are sons and respondent no.8 is unmarried daughter of deceased [ENTITY]. Respondents no.3 to 8 are also Class-I heirs under [ACT] and being dependent are entitled to compensation as per law equally.
Thirdly, respondent no.2/Insurance Company stated that present petition filed under [SECTION] and [SECTION] of [ACT] is neither maintainable under [SECTION] nor under [SECTION] of [ACT] and since the petition is not maintainable under both Sections, petition be dismissed.
I have seen [SECTION] of [ACT] and my observation is that petition is maintainable under [SECTION] of [ACT].
Fourthly, it is stated by counsel for respondent no.2/ insurance company that since there was no accident, the present case is not covered under [ACT]. It is further stated that unless and until, there is accident and there is report to the police, the claim under [ACT] is not maintainable. In the present case it is not reported that motorcycle on which deceased [ENTITY] was sitting as pillion rider had met with an accident with any other vehicle.
It is a fact that no FIR has been registered against the driver of motorcycle due to which deceased [ENTITY] suffered fatal injuries. It may be noted that claim/petition under [ACT] is an judicial inquiry. It is not a claim which is to be rejected. Under [ACT] an judicial inquiry is to be made by the Presiding Officer deciding the nature of claim, quantum of compensation and who is entitled to receive the compensation from whom. Hence, merely because there was no accident with another vehicle is not a ground for rejecting the claim.
Fifthly, it is further a fact that motorcycle No. HR-51-P-5380 was insured with respondent no.2/Insurance Company. The deceased [ENTITY] was pillion rider on this motorcycle and being pillion rider, he was third party for the purpose of insurance and entitled to benefit of third party interest.
Sixthly, Regarding Quantum of Compensation
i) As regard the quantum of compensation, the sufferer party is to be compensated for the actual expenses incurred, if any before death supported by bills, loss of dependency and other general damages in addition to the above mentioned compensation which are as follows:-
(a) Funeral expenses, (b) Loss of consortium, if beneficiary is a spouse, (c) Loss of estate and love and affection etc. ii) Medical Expenses:- The following medical bills were
proved in evidence as Ex.PW1/1 (collectively) on record.
Medicine Bill dt. 12.03.2006 Rs. 138.00 Medicine Bill dt. 09.03.2006 Rs. 16.00 Medicine Bill dt. 11.03.2006 Rs. 70.20 Medicine Bill dt. 08.03.2006 Rs. 63.38 Medicine Bill dt. 14.03.2006 Rs. 38.13 Medicine Bill dt. 06.03.2006 Rs. 400.00 Bill dt. 06.03.2006 Rs. 50.00 Bill dt. 06.03.2006 Rs.1350.00 Rs.2125.71
Hence, an amount of Rs.2126/- is awarded towards the head of 'medical expenses' is granted to the respondents no.3 to 8.
iii) Loss of consortium, if beneficiary is a spouse:- Since respondents no.3 is wife of deceased [ENTITY], she alone is entitled for compensation under the head 'Loss of consortium'.
iv) Loss of Dependency Before assessing the loss of dependency, I placed my reliance on the observations given by their lordships of Supreme Court in a decided case cited as [ENTITY] Vs. Delhi Transport Corporation 2009 ACJ 1298 , wherein following principles are laid down:
I Multiplier Age of the deceased (in years) Multiplier II Deduction for personal and living expenses Deceased - Unmarried (i) Deduction towards personal expenses : 1/2 (50%) (ii) Deduction where the family of the bachelor is large and dependent on the income of the deceased : 1/3rd (33.33 %) Deceased - Married (i) 2 to 3 dependent family members : 1/3rd (ii) 4 to 6 dependent family members : 1/4th (iii) More than 6 family members : 1/5th (iv) Subject to the evidence to the contrary : Father, brother and sisters will not be considered as dependents III Future prospects
(i) Permanent job below 40 years of age: Actual salary - tax + 50%
(ii) Permanent job Between 40-50 years : Actual salary - tax + 30% towards future prospects
(iii) More than 50 years with permanent job : Actual salary only.
No addition for future prospects
(iv) Deceased employed at a fixed salary : Only actual income (without provision for annual to be taken increments) No addition In assessing the loss of dependency, age of the deceased and proof of his income are the important factors.
Regarding age proof:- In the petition, the age of deceased [ENTITY] on the date of accident was stated to be 60 years. There is no contrary evidence by the respondents disputing the age deceased [ENTITY] being 60 years. Hence, on the date of accident, the age of deceased [ENTITY] was held to be about 60 years.
Regarding the income of the deceased:- It has come in the petition as well as in the evidence that deceased [ENTITY] was a farmer and his income was Rs.40,000/- per annum at the time of his demise.
Admittedly, no proof of income of deceased [ENTITY] has been placed. Even there is no document to show that deceased [ENTITY] was owner of any agriculture land on which he was doing farming. Hence, there is no document on record to show that deceased [ENTITY] was earning Rs.40,000/- per annum at the time of his death.
There is no evidence about the educational qualification of deceased [ENTITY]. Hence, deceased [ENTITY] can be paid as per Minimum Wages of unskilled worker as prevailing at the time of his death.
The prevailing rate of Minimum Wage of unskilled worker at the time of his death, was Rs. 3,312/- and thus, the monthly income of deceased [ENTITY] is hereby held as Rs. 3,312/- per month.
In a decided case cited as [PRECEDENT]., it is observed as under :-
We find it extremely difficult to fathom any rationale for the observation made in para no. 24 of the judgment in [ENTITY]'s case that where the deceased was self employed or was on a fixed salary without provision for annual increment etc. The court will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances.
In our view, it will be nave to say that the wages or total emoluments/income of a person who is self employed or who is employed on a fixed salary without provision for annual increment etc. would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self employed or who get fixed income or emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provision has been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold.
Although, the wages/income of those employed in unorganized sectors have not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those, who are self employed and even those engaged on daily basis, monthly basis or even seasonal basis, We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the later category periodically increase the cost of their labour. In this context it may be useful to give an example of a tailor, who earns his livelihood by stitching clothes. If the cost of living increases and the prices of essentials go up it is but natural for him to increase the cost of his labour. So, will be the cases of ordinary skilled and unskilled labour like barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of [ENTITY]'s judgment, the court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self employed or is engaged on fixed wages will also get 30 % increase in his total income over a period of time and if she or she becomes victim of accident, then the same formula deserves to be applied for calculating the amount of compensation. In view of the above multiplier and [ENTITY]'s case, the 1/4th of the total income is to be deducted towards personal expenses in the cases where dependents are between 4 to 6 in numbers.
Considering the age of the deceased [ENTITY] being 60 years at the time of the accident, the appropriate multiplier applicable in the present case is of 9. Accordingly, the amount of compensation under the head of loss of dependency comes to Rs.3,312/- minus 1/4th x 12 x 9 = Rs.2,68,272/-. I accordingly, award the said amount of Rs.2,68,272/- under the head of loss of dependency.
vi) Loss of love and affection: My inference is that Rs.20,000/-
to each of the respondents no. 3 to 8 under this head be awarded.
vii) Loss of Estate: My inference is that Rs.10,000/- to each of the respondents no.3 to 8 under this head be awarded.
viii) Towards funeral expenses: My inference is that Rs.10,000/- under this head be awarded to the respondent no.3/wife.
15. RELIEF:-
Respondents no.3 to 8 have become entitled for the total amount of compensation towards all the heads as follows:
Sl. no. On account of Amount (Rs.) 1 Loss of dependency Rs. 2,68,272/- 2 Towards medical bills Rs. 2,126/- 3 Loss of love and affection Rs.1,20,000/- (Rs. 20,000/- each) 4 Loss of Estate (Rs.10,000/- each) Rs. 60,000/- Total Rs. 4,50,398/-
16. I grant a compensation of Rs.4,50,398/- to the respondents no. 3 to 8 from the date of the filing of the petition till the realization, as follows:-
a) Respondent No.3 1/6th of Rs.4,50,398/- + Rs. 25,000/- (loss of consortium) + Rs.10,000/- (Funeral Expenses)
b) Respondents No.4 to 8 1/6th of Rs.4,50,398/- each.
17. Respondent no.2 shall be liable for interest @ 7% per annum, till the amount is received by the respondents no.3 to 8.
18. If the respondents no.7 and 8 have not attained the age of majority then their shares be kept in fixed deposit with UCO Bank, Patiala House Courts, New Delhi till they attain the age of majority.
19. Respondent no.2/Insurance Company is directed to comply this order within 30 days from today under intimation of this Court, failing which, interest @ 9% per annum shall be paid for the delay period.
20. Copy of award be supplied to the petitioners as well as to respondents free of cost.
21. File be consigned to Record Room.
Announced in the open court today i.e. 15.03.2014 ([ENTITY]) ASJ-02/FTC, PO-MACT/ New Delhi District, Patiala House Courts, New Delhi 15.03.2014