IN THE COURT OF SHRI [ENTITY] PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL (WEST) DELHI Suit No. : 86/11 1. Smt. [ENTITY] w/o Sh. [ENTITY] 2. Sh. [ENTITY] s/o Sh. Shiv Rata Malhotra, Both R/ B-59, First Floor, Gujranwala Town, Delhi-110033 Permanent Add: C-47, Gali No.3, 2nd Floor, Mahendru Enclave, Delhi Petitioners Versus 1. Mr. [ENTITY] s/o Sh. Ajeeb Ahmed R/o WZ-679, Gujjarwali Gali, Naraina, New Delhi (driver) 2. Sh. [ENTITY] s/o Sh. Shashi Bhushan, R/o WZ-39, Naraina Village, New Delhi (owner) 3. ICICI Lombard General Insurance Company Ltd. Zenith House, Keshavrao Khadye Marg, 2nd Floor, Mahalaxmi, Mumbai-4 00 034 ( Insurer) Respondents
Date of Institution: : 26/10/2009(AIR) Date of reserving order/judgment : 03/01/2013 Date of pronouncement: : 04/01/2013 AWARD
1. This judgment cum award shall decide the petition under [SECTION] and [SECTION] of [ACT] as amended up to date (hereinafter referred as Act) filed by petitioners for grant of compensation for the death of Sh. [ENTITY] in the road vehicular accident.
2. The case of the petitioners is that on 06/10/09 at about 7.00 p.m while the deceased who being the bachelor son of the petitioners was going on his motor cycle and while he reached at Ring Road, Rajouri Garden, in the meantime the offending vehicle Bus bearing No. DL-1PA-6061 which was being driven by its driver/ respondent No.1 in a rash and negligent manner hit motor cycle of deceased. Resultantly, the deceased fell down and died. In total the petitioners have claimed a total sum of Rs. 64,51,576/- on account of compensation.
3. The written statement was filed by respondents No.1 and 2 wherein they categorically denied the rash and negligent aspect and also termed the contents of the petition to the false one.
4. The written statement was filed by respondent no.3, insurance company wherein it was admitted that the offending vehicle was insured with it as on the date and time of accident but denied the other contents of the petition.
5. On the pleadings of the parties following issues arose for consideration on 28/3/2011.
1.Whether the deceased Sh. [ENTITY] suffered injuries in an accident that took place on 06/10/09 at about 7.00 p.m involving vehicle Bus No. DL-1PA-6061 driven by respondent No. 1, owned by respondent No.2 and insured with respondent No.3? OPP.
2.Whether the petitioners are entitled to compensation? If so, to what amount and from whom?
3. Relief.
6. In order to establish its claim, petitioner No.1(mother of deceased) examined herself as PW-1; Sh. [ENTITY] as PW-2 who is the official of the concern where the deceased was stated to be working and Sh. [ENTITY] as PW-3 the official of the same department who proved the salary of the deceased. Respondents did not examine any witness in their defence.
7. I have thoroughly gone through the testimony of the witness and perused the record. I have also given thoughtful consideration to the arguments addressed by learned counsel for the petitioners and the learned counsel for the insurance company. My findings on various issues are as under :-
8. Since the present petition is under [SECTION] of [ACT], it was the bounden duty of the petitioner to prove that the respondent No.1 was rash and negligent in driving the vehicle at the time of accident.
9. The petitioner No.1 explained the mode and manner of the accident in his affidavit, Ex. PW1/A to the effect that on the date of accident while the deceased who being the bachelor was going on his motor cycle and while he reached at Ring Road, Rajouri Garden, in the meantime the offending vehicle Bus bearing No. DL-1PA-6061 which was being driven by its driver/ respondent No.1 in a rash and negligent manner hit motor cycle of deceased. Resultantly, the deceased fell down and died. The cross- examination carried on by the respondents are not suggestive of anything which may discard the claim of the petitioners that the driver of the offending vehicle was rash and negligent at the time of accident.
10. The police have also filed the Accident Information Report (AIR) pertaining to case FIR etc. bearing No. 368/09, P.S. Rajouri Garden, u/[SECTION] [SECTION] [ACT].
11. To determine the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in [PRECEDENT] wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under [SECTION] A [ACT] or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the [ACT] are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under [SECTION] and [SECTION] of the Act. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the [ACT]. This is because the chapter in the [ACT] dealing with compensation is a benevolent legislation and not a penal one.
12. Further recently the Hon'ble High of Delhi in [CASE NUMBER] in case titled as [PRECEDENT] decided on 23/07/2012 by Hon'ble Mr. Justice [ENTITY], held as under:
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under [SECTION] of the [ACT] Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court [ENTITY] and Ors. V [ENTITY] [PRECEDENT] where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
13. Therefore, reading all the documents filed by the petitioner as a whole it is clear that respondent no. 1 was driving the vehicle in rash and negligent manner.
14. The issue no. 1 ,therefore, stands in favour of the petitioner and against the respondents.
COMPENSATION :
15. As per the record, the date of birth of the deceased is 09/04/1988. The date of accident was 06/10/09. Accordingly, the deceased was 21 years as on the date of accident.
16. The year of birth of the mother of the deceased as per the copy of Adhar Card, Ex. PW1/5 was 1969. The date of accident was 06/10/09. Accordingly the mother of the deceased was 41 years as on the date of accident.
17. The PW-2 had brought the record from the department where the deceased was stated to be working. He stated that the deceased was their permanent employee. He proved the documents regarding the appointment of the deceased vide Ex. PW2/3. He further stated that deceased was employee with their concern even at the time of his death.
18. The PW-3 had also proved the the salary of the deceased for the month of September,2009 which is shown to be Rs. 13,271/- per month. He also proved the fact that deceased was permanent employee. Accordingly, I hereby treat the monhly income of deceased to be as Rs. 13,271/-.
19. Therefore, in terms of the dictum of the judgment of the Hon'ble Supreme Court of India in [ENTITY] Vs. DTC decided on 15.4.2009 in [CASE NUMBER] , 50% appreciation towards the future prospects can be given to the actual salary of deceased as he was a permanent employee and was 21 years of age, the total annual income of deceased comes out to be Rs. 13,271/- + Rs. 6635.5 p = Rs. 19,906.5 p.
20. As per the judgment of Hon'ble Supreme Court of India in [ENTITY] (supra) , 50% of the income of the deceased is directed to be deducted towards personal and living expenses as the deceased was bachelor and has left behind his parents. After deducting one- half towards personal expenses, the loss of dependency per month comes out to be Rs. 19,906.5 p - Rs. 9,953.25 p. . = Rs. 9,953.25 p.
21. For the purpose of determining the multiplier in case of death of bachelor, the petitioners cited the latest judgment of Hon'ble Supreme Court in case titled as [ENTITY] & ors Vs. National Insurance Co. Ltd. & Ors, reported in 2012 VI AD(S.C.) 399 wherein it was held as under:-
"13. Learned Counsel appearing on behalf of the respondents- Insurance Company submitted that the deceased-[ENTITY] was unmarried boy aged about 26 years and the High Court rightly applied the multiplier of 13 as per the age of the claimants, i.e. Parents. According to the respondents, the multiplier is to be applied as per the age of the deceased or as per the age of the claimant, whichever is higher but aforesaid submission cannot be accepted in view of the finding of this Court in the case of [ENTITY]).
14. We have considered the respective arguments and perused the record. The questions which arise for consideration are:
(i) What should be the deduction for the 'personal and living expenses of the deceased-[ENTITY] to decide the question of the contribution of the dependent members of the family; and
(ii) What is the proper selection of multiplier for deciding the claim.
17. The Selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent.
There may be a number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation. 18. In the case of [ENTITY]) this court held that the multiplier to be used should be as mentioned in column(4) of the table of the said judgment which starts with an operative multiplier of
18. As the age of the deceased at the time of the death was 26 years, the multiplier of 17 ought to have been applied. The Tribunal taking into consideration the age of the deceased rightly applied the multiplier of 17 but the High Court committed a serious error by not giving the benefit of multiplier of 17 and bringing it down to the multiplier of 13.
22. Per contra, the counsel for insurer have relied upon the judgment of Hon'ble High Court in [ENTITY] & Anr Vs. Binod Kumar Yadav & Ors in MAC . [CASE NUMBER] decided by Hon'ble Mr. Justice [ENTITY], in which it was held that in case of death of bachelor, multiplier is to be applied on the basis of the mother of deceased. Ld. Counsel for insurer vehemently argued that in the said judgment passed by Hon'ble High Court, it has relied upon a three Judges Bench judgment of the Hon'ble Supreme Court of India in U.P. State Road Transport Corporation Ors. v. [ENTITY] and Ors,(1996) 4 SCC 362 and also relied upon another three Judges Bench judgment of the Supreme Court [PRECEDENT]. In the [ENTITY] (supra), the Hon'ble Supreme Court has held as under: -
"12. For concluding the analysis it is necessary now to refer to the judgment of this Court in the case of [PRECEDENT]. In that case this Court culled out the basis principles governing the assessment of compensation emerging from the legal authorities cited above and reiterated that the multiplier method is the sound method of assessing compensation. The Court observed:
"The multiplier method involves the ascertainment of the loss of dependency or the multiplicand dependency or the multiplicand having regard to the circumstances of the case and captalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants, whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last.
The principle was explained and illustrated by a mathematical example:
"The multiplier represents the number of Years' purchase on which the loss of dependency is capitalised. Take for instance a case where annual loss of dependency is Rs. 10,000/-. If a sum of Rs. 1,00,000/- is invested at 10% annual interest, the interest will take care of the dependency, perpetually. The multiplier in this case works out to 10. If rate of interest is 5% per annum and not 10% then the multiplier needed to capitalise the loss of the annual dependency at Rs. 10,000/- would be 20 will yield the annual dependency perpetually. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future, the allowances for immediate lump sum payment, the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last etc. Usually in English Courts the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person (or that of the dependents, whichever is higher) goes up."
23. In the [ENTITY]) relied upon by Hon'ble High Court of Delhi in [ENTITY] case(supra), wherein the case of the death of a bachelor, who was aged only 25 years, the multiplier of 5 was applied according to the age of the mother of the deceased, who was about 65 years at the time of accident . Para 6 of the report is extracted hereunder:-
"6. Considering the income that was taken, the foundation for working out the compensation cannot be faulted. The monthly contribution was fixed at Rs. 3,500/-. In the normal course we would have remitted the matter to the High Court for consideration on the material placed before it. But considering the fact that the matter is pending since long, it would be appropriate to take the multiplier of 5 considering the fact that the mother of the deceased is about 65 years at the time of the accident and age of the father is more than 65 years. Taking into account the monthly contribution at Rs. 3,500/- as held by the Tribunal and the High Co urt the entitlement of the claim would be Rs.2,10,.000/- . The same shall bear interest @ 7.5% p.a from the date of the application for compensation.
Payment already made shall be adjusted from the amount due."
24. Now since there is three Judges Bench decision directing that multiplier should be applied on the basis of the age of the deceased or the survivor whichever is higher, and further since the decision in [ENTITY] (supra) case being a two Judge Bench decision case wherein it was held that the multiplier should be applied on the basis of the age of the deceased, the present court being subordinate court is bound by the three Judges Bench decision with due respect to the judgment given by a two Judges Bench decision of Hon'ble Supreme Court The dictum of the Hon'ble Supreme Court given by three Judges Bench has been explained and discussed by the Hon'ble High Court of Delhi in [ENTITY] & Anr V. Binod Kumar Yadav & Ors delivered on 03/01/12.
25. The age of the mother of the deceased has already been determined to be as 41 years as aforesaid as on the date of accident. In view of the aforesaid discussion, the age of the mother of the deceased is material as mother is considered to be the dependent in case of death of bachelor in terms of aforesaid judgment in [ENTITY]'s case. The appropriate multiplier applicable is 14, as mentioned in [ENTITY]'s judgment (Supra). Hence, the total loss of dependency comes out to (Rs. 9,953.25p. 12 X 14) Rs. 16,72,146/-.
26. Regarding loss of love and affection, I am guided by the judgment of Hon'ble High Court of Delhi in its latest document in [CASE NUMBER] in case titled as '[PRECEDENT]' decided on 26/09/12 by Hon'ble Mr. Justice [ENTITY] wherein it was held as under:-
"12. Loss of love and affection can never be measured in terms of money. Thus uniformity has to be adopted by the Courts while granting non-pecuniary damages. The Supreme Court in [PRECEDENT] and in [PRECEDENT] granted only Rs. 25000/-( in total to all the claimants) under the head of loss of love and affection.
13. The compensation of Rs. 1,00,000/- towards love and affection is on the higher side. The same is reduced to Rs. 25,000/-"
27. In terms of the aforesaid judgment passed by the Hon'ble High Court of Delhi, I award Rs. 25,000/- towards love and affection; Rs. 10,000/- towards funeral charges & Rs. 10,000/- towards loss of estate. Therefore, in total, I hereby award a sum of Rs. 17,17,146/- in favour of the petitioners and against the respondents. RELIEF:
28. I award Rs. 17,17,146/- (Rupees Seventeen Lakhs, Seventeen Thousand One Hundred Forty Six Only) as compensation with interest at the rate of 7.5% per annum including interim award, if any from the date of filing the petition i.e. 26/10/09(AIR) till the notice under [SECTION] is given by the insurance company, in favour of the petitioner and against the respondents on account of their liability being joint and several. Both petitioners shall have the equal share in the award amount.
29. Acting on the guidelines issued by Hon'ble Supreme Court of India [PRECEDENT] in order to avoid the money being frittered away, fifty percent of the amount awarded to each petitioners shall be kept in FDRs of almost equal amount for a period of 1,2,3,4 & 5 years. No loan or advance shall be allowed against the said fixed deposit. The Petitioners can withdraw the interest quarterly from their FDRs.
30. PW-1 has admitted in her testimony that she had withdrawn Rs. 1 Lac from the court of Ld. M.M. Delhi which was deposited by the owner before the court of Ld. M.M. Delhi at the time of release of vehicle on Superdari. She further deposed that she has no objection if the said amount of Rs. 1 Lac be deducted from the total compensation of award and be handed over to the owner.
31. Accordingly, in terms of the para '9' of the judgment of Hon'ble High Court of Delhi in court on its own motion vs. [PRECEDENT], I order that the insurance company shall deduct the said amount of Rs. 1,00,000/- from the award amount, deposited by owner before the court of Ld. M.M. The owner shall be at liberty to claim the same from the office of the insurance company. APPORTIONMENT OF LIABILITY
32. The respondent No: 3 being the insurer, its liability is joint and several with other respondents. Accordingly, respondent No.3 is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
33. The Hon'ble High Court of Delhi in its latest judgment in [PRECEDENT] decided on 13.1.2010 have given certain guidelines and directions to the Motor Accident Tribunals to the effect that henceforth the Tribunals shall direct the insurance companies to deposit the award amount in the bank within 30 days with further direction as to the disbursement of the same in terms of the award and case be kept pending till the compliance is placed on record. The directions given by Hon'ble High Court of Delhi as mentioned and endorsed in the said order has already been re affirmed by Hon;ble Supreme Court of India in order dated 17.12.2009 in [CASE NUMBER] which contains certain schemes initiated for the benefit of the victims of the road accidents after the award amount is passed. The para no.18 of the judgment of the Hon'ble High court of Delhi runs as under:-
"19. To protect and preserve the compensation amount awarded to the families of the deceased victim special schemes may be considered by the insurance companies in consultation with the Life Insurance Corporation of India, State Bank of India or any other Nationalized Banks under which the compensation is kept in fixed deposit for an appropriate period and interest is paid by the Bank monthly to the claimants without any need for claimants having to approach either the Court or their counsel or the Bank for that purpose. The scheme should ensure that the amount of compensation is utilized only for the benefit of the injured claimants or in case of death, for the benefit of the dependent family. We extract below the particulars of a special Scheme offered by a nationalized Bank at the instance of the Delhi High Court:
(i) The fixed deposit shall be automatically renewed till the period prescribed by the Court.
(ii) The interest on the fixed deposit shall be paid monthly.
(iii) The monthly interest shall be credited automatically in the saving account of the claimant.
(iv) Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimant along with the photocopy of the FDR.
(v) The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period.
(vi) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
(vii) No cheque book shall be issued to the claimant without permission of the Court.
(viii) No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the Court.
(ix) The claimant can operated the saving bank account from the nearest branch of UCO Bank on the request of the claimant, the bank shall provide the said facility."
34. It was further held in the judgment passed by Hon'ble High Court of Delhi in [ENTITY] case (Supra) that "The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its nodal officer Mr. [ENTITY], Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb:
09717044322) or to UCO Bank through Mr. [ENTITY], Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.09310356400) as per the convenience of the victim /legal representatives of the victim. However, if any other bank agrees to provide the special scheme for victims of the road accident on the above terms, the deposit be permitted to be made in that Bank subject to the convenience of the victim/legal representative of the victim of the road accident".
35. Accordingly, respondent No.3 / insurer is directed to deposit the award amount in Punjab National Bank, Branch Gokhle Market Opposite Tis Hazari Court, Delhi within a period of 30 days and shall filed the compliance report. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
36. It is made clear that at the time of the deposit of the award amount with the bank, the insurance company shall specifically mention the suit no. of the case, title of the case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file the attested copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank.
37. The copy of this award be given to the insurance company as well as to the petitioner free of cost. The petitioner/ petitioners shall approach the Punjab National Bank, Branch Gokhle Market Opposite Tis Hazari Court, Delhi Delhi for opening the account.
38. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioners. However, in case the amount is ordered to be kept in the FDR, the said amount should not be released unless the FDR is matured.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 04/03/13, to be fixed by insurance company.
Announced in the open court on 4th of January,2013 ([ENTITY]) PO: MACT (WEST): DELHI 04/01/13 Present: None.
Judgment announced vide separate sheets of even date.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 04/03/13,o be fixed by insurance company.
([ENTITY]) PO: MACT(WEST) : DELHI