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. 271/12) (Fatal case) 1) Sh. [ENTITY] (Father) S/o Sh. Mukund Lal 2) Smt. [ENTITY] (Mother) W/o Sh. Naveen Miglani Both R/o. Jhuggi No. H.No. 73 Pocket 7, Sector 21, Rohini, Delhi. Petitioners Versus 1) Sh. [ENTITY] (Driver) S/o Sh. Bharat Singh Mahar R/o. R/o A2/14, E Sainik Enclave, Mohan Garden, Uttam Nagar, Delhi. 2) M/s. [ENTITY] Through its Prop. (owner) [ENTITY] son of Bharat Singh Mahar, A2/14, E Sainik Enclave, Mohan Garden, Uttam Nagar, Delhi. 3) IFFCO TOKIO General Insurance Co. Ltd. IFFCO Tower plot No.3, Sector 29, Gurgaon, Haryana, Delhi. Vide cover Note No. Tit/90017637 period from 19.8.2011 to 18.8.2012. Respondents Date of institution 06.10.2012 Date of decision 18.09.2013 (Application u/s 166 and 140 of Motor Vehicles Act for grant of compensation) 2 JUDGMENT:
1 Petitioners being father and mother and legal heirs of the deceased [ENTITY] who was aged 23 years at the time of his death and was unmarried at the time of accident has filed the present claim petition claiming therein a compensation of Rs. 4 Crores alongwith interest on the ground that on 10.7.2012 at about 6.35 AM the deceased [ENTITY] was going on his two wheeler Motorcycle bearing No. HR 05Q 0405 and when he was coming from pathar Market side and going to Outer Ring Road towards Deepali Chowk, in the meantime a Innova car bearing No. HR 55 LT 4166 driven by respondent No.1 at a very high speed, rashly and negligently without observing the traffic rules came from Pathar market Red light side without blowing horn to service lane adjoining the outer ring road and crashed the above said motorcycle as a result of which the deceased alongwith his motorcycle fell down and became unconscious and received fatal injuries on his head and thereafter was taken to Jaipur Golden Hospital by the police officials where he was treated by the doctor and died lateron. The accident occurred due to negligence on part of respondent No.1. A criminal case under [SECTION] [ACT] was registered against respondent no.1 vide FIR No. 254/12 in police station Mangol Puri.
2. Petitioners claimed sum of Rs. 4 Crores alongwith interest as compensation from the respondents being driver and owner and insurance company under various pecuniary and non pecuniary heads.
3. Respondents No.1 and 2 chose to remain absent and hence vide order dt. 21.11.2012 they were proceeded exparte. Respondent No.3/Insurance company filed separate WS wherein it denied all allegations and evaded its liability on technicalities.
4. On the basis of pleadings of the parties, following issues were framed on 21.11.2012:-
1.Whether Sh. [ENTITY] died due to road accident on 10.7.2012 at about 6.35 AM at Service lane on Outer Ring Road, Stone Market Service Road crossing, Mangol Puri, Delhi within the jurisdiction of PS Mangol Puri, Delhi due to rash and negligent driving of the bus bearing No. HR 55 LT 4166 being driven by the respondent No.1 ? OPP
2.Whether the petitioners are entitled to compensation, if so, to what an extent and from which of the respondents? OPP
3.Relief
5. In order to prove his case, petitioner examined two witness:
PW1 is Sh. [ENTITY], he is father of deceased. He tendered his evidence by way of affidavit Ex.PW1/A and further tendered the documents Ex.PW1/1 and Ex.PW1/15.
PW2 is Sh. ASI [ENTITY]. He is eye witness of the accident, he narrated the manner in which the accident took place. Thereafter PE was closed.
No evidence was led on behalf of respondents. Thereafter RE was closed.
6. I have heard counsel for parties and gone through the record. My decision on the above mentioned issues is as under:
Issue no.1:-
7. The proof required in MACT claim petition are less than the proof required to criminal offence or a civil case. The principles to be followed in the case of motor accident claims has been laid down by the Hon'ble High Court of Guwahati 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], Hon'ble Supreme Court has observed as under:-
"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 of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
8. The DAR report on record shows that respondent no. 1 has been prosecuted by the police for causing the accident in question due to rash and negligent driving of offending vehicle. It has been specifically mentioned in the FIR as well as other documents that how and in which manner accident had taken place and specifically blamed respondent no. 1 for driving offending vehicle in rash and negligent manner and hitting the deceased. Furthermore petitioners examined PW2 ASI [ENTITY] who is the eye witness of the accident and he deposed the manner in which the accident had taken place. His testimony remained unchallanged and unshaken on record hence, respondents failed to shake the testimony of eye witness.
It is not the case of the respondents that they had lodged any complaint to any higher authority against alleged false implication of respondent no. 1 in criminal case. It is also not their case that they had any previous enmity with petitioner or IO of the case which facilitated them to involve respondent no. 1 in the alleged false case. Accordingly, it is held that accident had taken place due to rash and negligent driving of offending vehicle No. HR 55 LT 4166 by respondent no. 1 by which injured had suffered fatal injuries and there was no negligence on his part. Furthermore, the respondent No.1 was the best person to challange the version of the DAR report/criminal case record placed against him but he chose not to appear in the witness box. Hence adverse inference is drawn against the respondent No.1.
Accordingly, this issue is thus decided in favour of petitioners and against the respondents.
Issue no. 2:-
9 As per the petition, the deceased [ENTITY] was unmarried and aged 23 years at the time of his death he was survived by his father and mother. Normally, the father is not said to be dependent upon the deceased son, hence in such circumstances the mother only is considered to be dependent upon the deceased son.
Pecuniary Damages Loss of Dependency 10 Counsel for the petitioner have stated that the accident occurred on 10.7.2012 and at that time, the deceased was 23 years of age and was the student of Chartered Accountancy final year. Furthermore it is submitted by PW1 that at the time of accident the deceased was offered the post of Audit Manager (Internal Auditing) for location at Sonipat in a bicycle manufacturing company as he had already completed Inter-II Certificate from the Institute of Chartered Accounts of India in the year 2007 and offered annual salary of the jobof Rs. 4-5 lakhs incentive plus perks. Beside this the deceased passed B.com from Kurukshtra University in the year 2006 and also Post Graduate Diploma in Business Administration from Guru Jambeshwar University of Science and Technology, Hissar in the year 2007 and also completed NISM Series VII Securities Operations and Risk Management Certificate Examination in the year 2011 from National Institute of Securities Markets. He proved all the documents in support of his averments on record as Ex.PW1/11 to Ex.PW1/15. His testimony remained unchallanged and unshaken on record.
"As held by the Hon'ble Supreme Court in the case of [PRECEDENT] and followed by the Hon'ble Delhi High Court in the case of [PRECEDENT]. The compensation in respect of death of a student pursuing a professional course is determined according to his earning capacity after completion of the professional course. "
11 Hence, as per the judgment of Hon'ble Supreme Court cited above, assumed income of the deceased for the purpose of assessing the loss of dependency is to be based upon the income which he would have got had he had not suffered the untimely death and completed his professional education as has been followed by the Hon'ble High Court of Delhi minimum what he could have got and being selected if a not very good Chartered Accountanct drawing about 5 lakhs per annum. Following the precedent of Hon'ble Supreme Court, I consider the assumed income of the deceased who expired in the accident in question on record based on his record as a brilliant student he must have been earning Rs. 5 lakhs if be would have been atleast doing his own practice. Hence his assumed income is taken to the extent of Rs. 5 lakhs per annum for the calculation of loss of dependency.
12 Since the deceased was unmarried aged 23 years and was survived by his legal representatives considered as above, so keeping in view the age of deceased as 23 years at the time of accident, as per [PRECEDENT]. judgment of Hon'ble Supreme Court's decision reported in [CASE NUMBER] arising out of [CASE NUMBER]. Hence the yearly income of deceased comes to Rs. 7,50,000/- (5,00,000/- + 50%).
13 As per the petition, the deceased was unmarried and he left behind his father, and mother, as held above, his mother only is considered to be dependent upon her deceased son.
14 Counsel for petitioner submits that as per the voter identity card placed on record with Dar report, the age of mother of deceased who is petitioner No.2 in the present petition has been mentioned as 45 years as per the voter card placed on record at the time of death of her deceased son which has not been disputed by the counsel for insurance company, so in view of the judgment of Supreme Court given in [ENTITY] vs. DTC 2009 and as per said Judgment multiplier of 14 has to be applied to the income of the deceased, as per the [ENTITY] Judgment hence the deduction of 1/2 from the income of deceased has to be made upon his personal expenses. Hence after deducting 1/2 of the amount from yearly income of Rs. 7,50,000/-, the yearly dependency comes to Rs. 3,75,000/- per year. Accordingly, in this case, loss of dependency is assessed at Rs. 52,50,000/- (Rs.
7,50,000 - 1/2 x 14) in round figure its comes to Rs. 52,50,000/-.
Funeral Charges 15 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 Teharvin ceremonies etc. As per case titled [PRECEDENT]. judgment of Hon'ble Supreme Court's decision reported in [CASE NUMBER] arising out of [CASE NUMBER] a lump sum of Rs. 25,000/- as funeral charges is granted.
Loss of Estate:
16 Petitioners are also entitled to the loss of estate amounting to Rs. 10,000/- as per [ENTITY]'s case decided by Hon'ble Supreme Court of India.
Non Pecuniary Damages:
Loss of Love and Affection:
17 Further in the present petition the deceased was unmarried and he left behind his father and mother. As per judgment of Hon'ble Mr. Justice [ENTITY] and [ENTITY] of Hon'ble Supreme Court in case cited as [PRECEDENT] wherein Rs. 1,00,000/- were granted towards Love and affection to the father and mother who were left behind by the deceased, hence in view of above cited judgment Rs. 1,00,000/- is awarded to both the petitioners towards love and affection.
18 Further petitioners are also granted a sum of Rs. 50,000/- towards notional loss of care, attention and expenses to be born for the performance for gratuitous services are granted as per the latest judgment of Hon'ble Mr. Justice [ENTITY] of Hon'ble Delhi High Court.
19 As the offending vehicle i.e Truck bearing registration No. HR 55 LT 4166 was insured with the respondent No. 3/insurance company from vide policy No. TIT/91017637 dated 24.11.2011 valid from 19.8.2011 to 18.8.2012 which has been placed on record. Further, the Insurance company has failed to prove on record any breach of terms of policy by respondent No.1 and 2. Hence in view of same the insurance company is liable to pay the amount of compensation to the petitioners.
20 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/insurance company only:
Pecuniary Damages:
1) Loss of dependency Rs. 52,50,000/-
2) Funeral charges Rs. 25,000/-
3) Loss of Estate Rs. 10,000/-
Non Pecuniary Damages:
4) Loss of love, company and affection etc. Rs. 1,00,000/-
5) Loss of gratuitous services Rs. 50,000/-
Total = Rs. 55,35,000/-
Relief 21 Petitioner is entitled to a sum of Rs. 55,35,000/- alongwith interest @ 9% as per the judgment in case [PRECEDENT], from filing of petition i.e 6.9.2012 till the payment is made by the respondent No. 3/insurance company within 30 days from the date of this award alongwith accrued interest.
22 Further it is directed that out of the total compensation amount Rs. 20,000/- through her saving bank account be paid to the petitioner No.2 i.e. mother of deceased.
23 Further a sum of Rs. 1 lac be deposited in the name of petitioner No.1 i.e. father of the deceased by way of FDR initially for the period of five years (thereafter it be renewed from time to time) with liberty to withdraw the monthly interest.
24 Remaining amount with upto date interest on entire amount be kept in the form of FDRs in the name of petitioner No.2 i.e. mother of deceased initially for the period of five years (thereafter it be renewed from time to time) with liberty to the petitioner No. 2 (mother of deceased) to withdraw the monthly interest through her saving bank account.
25 The above said FDRs be kept with SBI Tis Hazari Court, Delhi branch with the right to the decree holders to get the monthly interest through their saving bank account to the nearest branch of any nationalized bank to their residence to be electronically transmitted if any request being made to the branch manager of SBI, Tis Hazari Court branch, Delhi.
26 The original FDRs be deposited in the SBI, Tis Hazari Court branch and only attested photocopies of the FDRs be provided to the petitioners. The FDRs not to be encashed without the permission of the Tribunal. No ATM facility or loan facility is allowed on these FDRs.
26 Copy of this judgment be given to the parties for compliance.
27 Put up for payment on 17.10.2013.
Announced in the open (D.K.MALHOTRA) Court on 18.09.2013 JUDGE, MACT North -II Rohini DELHI 18.09.2013 Pr. Counsel for the petitioner. Final arguments heard.
Vide separate judgment, petition stands disposed off. Put up for payment on 17.10.2013.
Announced in the open (D.K.MALHOTRA) Court on 18.09.2013 JUDGE, MACT (NORTH-II) DELHI