: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. 297/11) 1) Sh. [ENTITY] S/o Sh. Rati Ram 2) Smt. [ENTITY] W/o Sh. [ENTITY] Both R/o Village Kurani, Near Hari Dal Mill, Punjabi Colony, Narela, Delhi Petitioners/Claimants Versus 1) [ENTITY] S/o Sh. Om Parkash @ Parkash (Driver) R/o VPO Manirpur Distt. Sonipat. 2) [ENTITY] S/o Sh. Ram Kishore (Owner) R/o 445, A Block, Jahangirpuri, Delhi-110033. 3) HDFC ERGO General Insurance Company Ltd. (Insurer) C-302, IIIrd Floor, Ansal Plaza, HUDCO Place, Andrews Ganj, New Delhi Respondents Date of institution 16.09.2011 Date of decision 04.04.2012 (Petition u/s 166 and 140 of Motor Vehicles Act for grant of compensation) JUDGMENT:
Both petitioners being parents of the deceased [ENTITY] claimed compensation of Rs. 20,00,000/- alongwith interest in respect of death of their son in road accident. The deceased was unmarried, aged about 22 years at the time of his death. As per averments made in the petition, on 03.07.2011 at about 11.00 p.m. the deceased alongwith his friends namely [ENTITY] and [ENTITY] was going from Bawana to Narela by their motorcycle bearing No. DL-8S-MC-6149 and when they reached in front of DESU office on Bawana-Narela Road near Ghogha more, the offending vehicle i.e. Indica Car bearing No. DL-3CU-7167 which was coming from Narela side and was being driven by its driver in a very high speed, rash and negligent manner, hit the vehicle of the deceased from front side. The deceased was taken to MV Hospital, Pooth Khurd, Delhi for his treatment, where the MLC of the deceased was recorded vide [CASE NUMBER]. The postmortem was conducted on the dead body of the deceased at Babu Jagjiwan Ram Memorial Hospital, Delhi vide [CASE NUMBER], dated 04.07.2011. A criminal case under [SECTION] [ACT] was registered against respondent no. 1 vide FIR no. 316/11 in police station Narela, Delhi.
Petitioners being the parents of the deceased [ENTITY] alleged that the deceased was working with Bilt Company at Shahbad Dairy Road, Azadpur Bypass, Delhi and was earning approximately Rs. 8,000/- per month. Petitioners claimed compensation from respondents no. 1 being driver, respondent no. 2 being owner and respondent no. 3 being insurance company of the offending vehicle jointly and severally.
Respondent no. 1 & 2 filed joint written statement admitted happening with an accident but stated that the said accident was caused due to sole negligence of one [ENTITY] who was plying the motorcycle no. DL-8S-NC-8410 at a very high speed, rashly and negligently and none of them were wearing the helmet and were plying the motorcycle in a zig-zag manner and tried to overtake the vehicle without seeing the vehicle of the answering respondents very and inspite of applying emergency brake the sake accident could not be averted. It is further stated that the petitioners mentioned the another motorcycle in their petition and further stated that the present petition is not maintainable and is liable to be dismissed. Respondents no. 3 insurance company did not file its written statement, but filed reasoned reply to the petition and admitted existence of insurance policy in respect of offending vehicle but tried to avoid its liability on various technical grounds by stating that in the present case the third party two wheeler carrying three passenger had a head on collusion with the insured vehicle. Insurance company further stated that as the negligence on the part of third party vehicle is apparent, the insurance company is not liable to make any payment to the petitioners and the present proceedings may kindly be dismissed with exemplary costs.
On the basis of pleadings of the parties, following issues were framed on 16.01.2012 by my ld. Predecessor:
1) Whether Sh. [ENTITY] S/o Sh. [ENTITY] died due to road accident on 03.07.2011 at about 11.00 p.m. in front of Bawana Narela Road, DESU Office, near Ghogha More, Delhi within the jurisdiction of P.S. Narela, Delhi due to rash and negligent driving of Indica Car bearing no.
DL-3CU-7167 being driven by respondent no. 1 which hit the motorcycle bearing no. DL-8S-MC-6149 on which the deceased was sitting? OPP
2) Whether the petitioners are entitled to compensation, if so, from whom and to what amount? OPP
3) Relief.
In respect of this accident, three claim petitions bearing no. 297/11, 346/11 & 345/11 filed which were ordered to be consolidated for the purpose of evidence of eye witness [ENTITY] vide order dated 07.02.2012 and the evidence of eye witness was recorded in claim petition bearing no. 345/11 relating to the injuries caused to [ENTITY] which is being decided today. The common evidence recorded in [CASE NUMBER] was ordered to be read in this case also.
Petitioners in support of their case examined one witness i.e. PW-1 Sh. [ENTITY] (father of the deceased) who reiterated the facts as stated in the petition and proved the copy of ration card and copy of PAN card as Ex.PW1/1 & Ex.PW1/2. No evidence was led on behalf of the respondents.
I have heard counsel for the parties and gone through the 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".
[ENTITY] is the eye witness of the accident and on whose statement FIR was registered against respondent no. 1. [ENTITY] being the eye witness of the accident narrated about the way and manner of the accident and disclosed how and in which manner accident took place and entirely blamed driver of offending car in causing the accident. He in his statement deposed that he alongwith his friend Sh. [ENTITY] were traveling as pillion rider on the motorcycle bearing No. DL-8S-MC-8410 (correct no. DL-8S-NC-8410 as given in seizure memo of motorcycle) which was driven by their friend [ENTITY] at moderate speed and on the correct side of the road. In the cross examination, eye witness [ENTITY] stated that they were three persons on the motorcycle when the accident took place and he was sitting in between two riders on the motorcycle. He denied the suggestion that the accident took place due to his negligence. He further stated that police made inquiry from him regarding the accident on the same day. He noted down the registration number of the offending vehicle. He further denied the suggestion that the accident took place due to fall of motorcycle and not due to fault of driver [ENTITY] who was driving the vehicle or himself who was sitting as a pillion rider. He specifically stated that the offending car was coming from opposite side being driven in a rash and negligent manner, which hit the motorcycle from front side and due to the head on collision, sudden and forceful impact, he and his friends [ENTITY] and [ENTITY] fell down on the road and sustained grievous injuries. The plea taken by respondent no. 1 & 2 that the said accident was caused due to sole negligence of [ENTITY] who was plying the motorcycle no. DL-8S- NC-8410 at a very high speed, rashly and negligently and none of them were wearing the helmet and were plying the motorcycle in a zig-zag manner and tried to overtake the vehicle without seeing their vehicle and inspite of applying emergency brake the sake accident could not be averted, has not been established on record either by leading evidence or through the cross examination of eye witness [ENTITY]. Hence it exonerates the rash and negligent driving on the part of the motorcycle rider [ENTITY]. There is nothing on record to show that respondents no. 1 & 2 have lodged any complaint to any higher authority regarding the alleged false implication of respondent no. 1 in criminal case. There is also no evidence on record to point out that respondents no. 1 and 2 had any enmity with deceased persons or their family members or eye witness or investigating officer to create possibility of false implication of respondent no. 1 in criminal case. The statement made by eye witness [ENTITY] regarding the manner of accident is impeachable and trustworthy.
Counsel for respondent no. 3 insurance company has taken a plea that this is a case of contributory negligence. In support of his contention he has relied upon the judgment cited as [PRECEDENT] of Hon'ble Bombay High Court, [PRECEDENT] of Hon'ble Madras High Court and [PRECEDENT] of Hon'ble Supreme Court. But I find no force on the point raised by counsel for respondent no. 3 to treat this case as a case of contributory negligence being triple riding and the same plea is hereby rejected. Accordingly, it is held that the accident has taken place with offending Indica Car bearing No. DL-3CU-7167 due to rash and negligent driving by respondent no. 1 and there was no fault or negligence on the part of the driver [ENTITY] in driving his motorcycle. In view of the above discussions, this issue is decided in favour of petitioners and against the respondents.
Issue no. 2:-
Deceased was unmarried and left behind only his father and mother. He was aged about 22 years at the time of accident as per postmortem report. It is alleged that the deceased was working with Bilt Company at Shahbad Dairy Road, Azadpur Bypass, Delhi and was earning approximately Rs. 8,000/- per month but there is no proof of his income. In the absence of any proof of income of the deceased, there remains no other option except to take the help of schedule of minimum wages to presume the monthly income of the deceased by treating him falling in unskilled category worker and as per minimum wages chart, an unskilled person was presumed to be earning sum of Rs. 6,422/- per month as applicable on 01.04.2011. Accident took place on 03.07.2011 and the deceased expired on the next day in the hospital and there are no expenses of any medical treatment.
Accordingly, I am of the view that the amount of Rs. 6,422/- per month has to be taken into consideration while counting monthly income of the deceased.
Counsel for the respondents stated that no future prospects should be allowed upon the income of the deceased as he was not having any permanent job but Hon'ble Delhi High Court in [PRECEDENT] and [PRECEDENT]. [CASE NUMBER] decided on 25-8-2009 held that keeping in view the trend of increase of minimum wages from time to time and rises in price index and inflation, it can be said that minimum wages would get almost double over a period of next 10 years and thus future prospects should be given in minimum wages also. Thus applying the formula given in these judgments, the monthly income of the deceased has to be held at Rs. 9,633/- (Rs. 6,422 + 50%).
Deceased was unmarried aged about 22 years so in such situation, the age of the parents have to be taken into consideration for the purpose of ascertaining the multiplier. As per the copy of ration card Ex.PW1/1 placed on record it is revealed that at the time of death of the deceased, the age of petitioner no. 1 was above 52 years and of petitioner no. 2 was above 47 years. Accordingly, keeping in view the age of father of the deceased, multiplier of 11 has to be applied upon the income of the deceased in view of the judgment of Supreme Court given in [ENTITY] vs. DTC 2009 ACJ 1298.
Father is not treated as dependent upon his son but mother has to be treated as dependent. In case of unmarried person, it is presumed that he was spending half of his income upon his personal expenses in view of the decision of [ENTITY]'s case so the deduction of one half from income of deceased has to be made upon his personal expenses. Accordingly, after deducting of the amount from monthly income of Rs. 9,633/-, the net amount of dependency per month comes to Rs. 4,816/-. Accordingly, in this case, loss of dependency is assessed at Rs. 6,35,712/- (Rs. 4,816 x 12 x
Petitioners have not brought on record any document regarding expenses incurred on cremation and last rites of the deceased nor have alleged about it in the affidavit of PW-1. 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. 10,000/- as funeral charges.
They are also entitled to sum of Rs. 50,000/- (Rs. 25,000/- to each petitioner) towards loss of estate. Petitioners are also entitled to Rs. 1,00,000/- (Rs. 50,000/- to each petitioner) towards loss of love and affection as well as loss of company of the deceased after relying upon the judgment of Delhi High Court in case [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 liable to pay entire compensation amount.
In view of the above discussions, this issue is decided in favour of petitioners and against the respondents. Following compensation amount is payable by respondent no. 3 Insurance company:
1). Loss of dependency Rs. 6,35,712/-
2). Funeral charges Rs. 10,000/-
3). Loss of estate Rs. 50,000/-
4). Loss of love and affection etc. - Rs. 1,00,000/-
Total Rs. 7,95,712/- Hence petitioners are entitled to get Rs. 7,95,712/- as
compensation from the respondent no. 3 along with interest at the rate of 7.5% p.a. on this amount from the date of institution of the petition i.e. 16.09.2011 till realization.
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 sum of Rs. 7,95,712/- to both the petitioners in equal shares alongwith interest at the rate of 7.5 % p.a. from 16.09.2011 till this amount is fully paid.
It is further ordered that out of the compensation amount, Rs. 5,00,000/- be deposited in the name of both petitioners in the form of joint FDR initially for a period of 5 years to be renewed from time to time with liberty to withdraw monthly interest through saving bank account. Remaining amount alongwith accrued interest be kept in joint saving bank account of both the petitioners with liberty to withdraw Rs. 7000/- p.m. for personal expenses till entire amount alongwith accrued interest is exhausted. The FDR be got prepared from State Bank of India, Rohini Court, Delhi branch and shall not be encashed without permission of the court. No loan or advance shall be allowed to be taken on this FDR. Respondent no. 3 insurance company to pay further sum of Rs. 30,000/- as counsel fee to counsel for petitioner to Ms. [ENTITY], Adv., Enrollment No. D-1239-F/04 by preparing separate cheque in the name of counsel as per the judgment of Hon'ble Mr. Justice [ENTITY]. 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. File be consigned to record room.
Announced in the open (D.K. MALHOTRA) Court on 04.04.2012 JUDGE, MACT (OUTER-II) DELHI