IN THE COURT OF MS. REKHA RANI : JUDGE : MACT : DELHI MACT No. : 361/09 UNIQUE ID NO. : 02404C0[SECTION]232009 1. [ENTITY] W/o Sh. [ENTITY] 2. [ENTITY] S/o Sh. Laxman (Parents of the deceased) Both R/o H. No. 133, Harijan Basti, Mata Mandir Vali Gali, Bankner, Narela, Delhi40, 2nd 821/35/12, Vill Azadpur, PS Adarsh Nagar, Delhi33. Petitioners. Versus 1. [ENTITY] S/o Maya Ram R/o Vill Lohgarh, PS Sader Ambala HR. (Driver) 2. [ENTITY] S/o [ENTITY] R/o H. No. 65, Ward No. 5, Gurdwara Preet Nagar Ambala City HR (Owner) 3. M/s [ENTITY] 1310 1308 13 Floor, Ansal Tower, 38 Nehru Place, New Delhi19 (Insurer) Respondents. MACT No.361/09 [ENTITY] v. [ENTITY] 1 of 22 DATE OF INSTITUTION : 04.05.2009 DATE OF RESERVING ORDER : 26.09.2013 DATE OF PRONOUNCEMENT : 05.10.2013 AWARD: 1. Loss of a child has devastating effect on the family. The pain and suffering inflicted by deprivation of life of a child is extremely difficult to quantify, but the same could not be a ground for non payment of any compensation at all. Apex Court has evolved certain guidelines for arriving at "just and fair" compensation to ensure consistency and uniformity. 2. Hon'ble Apex Court in [ENTITY] & Anr. v. Kiran Pal and Ors. AIR 2009 Supreme Court 2506 observed: "10. Undoubtedly, the compensation in law is paid to restore the person, who has suffered damage or loss in the same position, if the tortuous act or the breach of contract had not been committed. The law requires that the party suffering should be put in the same position, if the contract had been performed or the wrong had not been committed. The law in all such matters requires payment of adequate, reasonable and just monetary compensation. MACT No.361/09 [ENTITY] v. [ENTITY] 2 of 22 11. In case of motor accidents the endeavour is to put the dependents/claimants in the preaccidental position. Compensation in cases of motor accidents, as in other matters, is paid for reparation of damages. The damages so awarded should be adequate sum of money that would put the party, who has suffered, in the same position if he had not suffered on account of the wrong. Compensation is therefore required to be paid for prospective pecuniary loss i.e future loss of income/dependency suffered on account of the wrongful act. 12. However, no amount of compensation can restore the lost limb or the experience of pain and suffering due to loss of life. Loss of a child, life or a limb can never be eliminated or ameliorated completely. To put it simplypecuniary damages cannot replace a human life or limb lost. Therefore, in addition to the pecuniary losses, the law recognises that payment should also be made for nonpecuniary losses on account of, loss of happiness, pain, suffering and expectancy of life etc. The Act provides for payment of "just compensation" vide [SECTION] and [SECTION]. It is left to the Courts to decide what would be "just compensation" in facts MACT No.361/09 [ENTITY] v. [ENTITY] 3 of 22 of a case. 3. Turning to the case in hand, petitioner filed present petition under [SECTION] & [SECTION] of the [ACT] (for short the Act), praying for compensation of an amount of Rs. 20,00,000/ on account of death of their only son aged about 13 years in a road accident pleading following facts. On 16.04.2009 at about 1:45 p.m, Master [ENTITY] (for short the deceased) was sitting as pillion rider on scooter no. DL5SS4198 which was being driven by [ENTITY]. They were proceeding towards Narela from Khurmpur Village PS Kundli Haryana. When they reached near GT Road, Janti Mor, Kundli Haryana then truck bearing registration No. HR 37C1505 (for short the offending vehicle) driven by [ENTITY] (for short R1) rashly and negligently came from behind and hit the scooter. As a result of forceful impact deceased fell down on the road and died on the spot. He was removed to Govt. Hospital, Sonipat where his postmortem was conducted. He has left behind his parents. They have suffered immense mental pain and agony. Deceased had bright future. [ENTITY] (for short R2) is owner of the offending vehicle and offending vehicle was insured with Reliance General Insurance co. MACT No.361/09 [ENTITY] v. [ENTITY] 4 of 22 (for short R3). All the respondents are responsible jointly and severely to pay the compensation. 4. R1 and R2 filed common written statement pleading that petitioners have not come with clean hands and have suppressed the true and correct material facts and that they are trying to gain wrongful advantage. It is denied that alleged accident took place involving the offending vehicle. It is also stated that R1 was driving the offending vehicle observing traffic rules. 5. R3 also filed written statement. It is admitted that the offending vehicle was insured with R3 in the name of R2 vide policy No. 108000051162 valid from 25.05.08 to 24.05.09. It is however stated that the accident took place on account of negligence of the deceased himself. 6. Following issues were framed by my Ld. Predecessor vide his order dated 21.04.2010. 1. Whether on 16.04.09 at about at GTK Road, [ENTITY], Kundli, Sonipat, vehicle No. HR37C1505 which was being driven rashly and negligently hit scooter no. DL5SS4198 on which Master [ENTITY] was pillion rider and caused his death? OPP 2. Whether petitioners are entitled to compensation, if so, to what MACT No.361/09 [ENTITY] v. [ENTITY] 5 of 22 amount and from whom? 3. Relief. 7. Mother of deceased, who is petitioner No.1 was examined as PW1. [ENTITY], an eye witness was examined as PW1 in connected case titled [ENTITY] vs [ENTITY] bearing no. 360/09 and thereafter petitioners closed their evidence. [ENTITY] R2 was examined as R2W1/A . 8. I have carefully perused the material available on record and I have heard counsel for both sides. Issue No. 1Qua Negligence 9. Mother of petitioner was examined as PW1. In her cross examination she stated that she is not eye witness of the accident. [ENTITY] appeared as eye witness in connected matter bearing no. 360/09 as PW1 and deposed that on 16.04.2009 at about 1:45 p.m he along with deceased were going on scooter no. DL5SS4198. The scooter was being driven by him and deceased was pillion rider. When they reached near GTK Road, [ENTITY], Kundli Haryana truck no. HR37C1505 which was being driven R1 in rash and negligent manner came from behind and hit the scooter as a result of which both of them fell down and [ENTITY] (deceased) died on the spot. MACT No.361/09 [ENTITY] v. [ENTITY] 6 of 22 In his crossexamination, he reiterated that offending vehicle hit the scooter from behind which resulted in the accident. The witness denied that he was not wearing the helmet at the time of accident. The witness denied the suggestion that deceased was also not wearing helmet. Even if it is assumed that neither driver nor pillion rider was wearing helmet that does not exonerate the respondents. 10. Reference may be made to [PRECEDENT]. [CASE NUMBER] decided on 16.05.12, where similar plea of contributory negligence on account of the deceased not wearing helmet was raised and Hon'ble Delhi High Court observed as under: " As far as the plea of contributory negligence on account of the deceased not wearing a helmet is concerned, even if it is assumed that the deceased was not earing a helmet, he cannot be said to have contributed to the accident. Reference is made to a Divison Bench judgment of M.P. High Court in [PRECEDENT] wherein it was held that if a motorcyclist did not wear a helmet at the time of the accident, he cannot be said to have contributed to the accident" 11. There is no crossexamination on statement of [ENTITY] that the offending vehicle was being driven by R1 rashly and negligently MACT No.361/09 [ENTITY] v. [ENTITY] 7 of 22 and that the same hit his scooter from behind which resulted in causing fatal injuries to the deceased. A suggestion was put to the witness that accident occurred due to rash and negligent driving by him which he denied. R1 himself did not appear in the witness box to clarify how accident could be attributed to the manner of driving the scooter by PW1. 12. The Act does not stipulate holding a trial for petition preferred under [SECTION] of the Act. Under [SECTION] of the Act, a Claims Tribunal holds an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. In [PRECEDENT]. Hon'ble Apex Court held that Claims Tribunal are not courts. Therefore they can act on any information, which they may receive. The only caution is that they should grant a reasonable opportunity to the person against whom said information is received, so that the proceedings are not challanged on the ground of denial of reasonable opportunity. 13. In [PRECEDENT], Hon'ble Supreme Court held that Claims Tribunal are required to take holistic view of the matter MACT No.361/09 [ENTITY] v. [ENTITY] 8 of 22 and that they should not insist on strict proof of an accident caused by a particular vehicle in a particular manner. It was further observed that claimants were merely to establish their case on the touchstone of preponderance of probability and not beyond reasonable doubt. 14. In [PRECEDENT]. Decided on 20th December, 2007. Hon'ble Delhi High Court noted that wife of the deceased had produced (1) certified copy of the criminal case, pertaining to involvement of the offending vehicle, (ii) charge sheet under [SECTION] [ACT] against the driver, (iii) certified copy of FIR, wherein criminal case against the driver was registered; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. It was accordingly held that these documents are sufficient proof to reach the conclusion that the driver was negligent. 15. Petitioners have filed certified copies of criminal case. Report u/[SECTION] [ACT] shows that R1 was prosecuted for having caused the said accident. It is stated that deceased died at the spot. As per postmortem report of the deceased, doctor has opined that cause of death was " hemorrhage and shock as result of injuries described which were antemortem in nature and sufficient to cause death in MACT No.361/09 [ENTITY] v. [ENTITY] 9 of 22 normal course of life" 16. R1 and R2 in their common written statement alleged that no accident was caused by the offending vehicle and petitioners have planted false case against them in collusion with police with a view to extort huge amount from them. R1 did not appear in the witness box to explain the manner in which accident took place. He did not explain why he was prosecuted by the police for having caused the said accident. It is not explained why he did not file any complaint against the police for chargesheeting him falsely. The case was listed for respondents evidence w.e.f 21.04.11. R1 and R2 did not lead any evidence to prove that the case is false and R1 has been falsely implicated for causing the said accident as alleged by them. 17. In view of the judgments cited above, testimony of [ENTITY], the eye witness and the certified copies of criminal case registered against R1 preponderance of probability is that R1 caused the accident in question by driving the offending vehicle rashly and negligently which resulted in death of the deceased. This issue is accordingly decided in favour of the petitioners and against the respondents. MACT No.361/09 [ENTITY] v. [ENTITY] 10 of 22 Issue No.2 Qua Quantum of Compensation 18. Mother of deceased as PW1 deposed that her son was only 13 years old at the time of accident and was studying in ClassVIIIth standard. Ex. PW1/2 is certificate issued by Govt. Sarvodya Bal Vidyalaya, Bankner, Delhi vide which it is certified that deceased was student of 8th Standard in that school. In his postmortem report also age of deceased is mentioned as 13 years. The same is not disputed by the respondents. 19. In [ENTITY] v. Musafir Paswan, VII(2005) SLT 257=IV(2005) ACC 15(SC), the Hon'ble Supreme Court awarded compensation of Rs. 2,25,000 in respect of death of a 13 years old boy by applying the multiplier of 15 and taking notional income of Rs. 15,000/ as per [SECTION] of the Act. The relevant part of the said judgment is reproduced hereunder: "As set out in the [SECTION] to the [ACT], for a boy of 13 years of age, a multiplier of 15 would have to be applied. As per the [SECTION], the being a nonearning person, a sum of Rs. 15,000 must be taken as the income. Thus, the MACT No.361/09 [ENTITY] v. [ENTITY] 11 of 22 compensation comes to Rs. 2,25,000/." 20. In [PRECEDENT], Hon'ble Rajasthan High Court awarded compensation of Rs. 2,25,000/ by applying [SECTION] of the Act in the case of death of 12 years old boy, following the decision of Apex Court in [ENTITY] (Supra). 21. [PRECEDENT], relates to the death of a child aged 5 years. Hon'ble Delhi High Court applied notional income of Rs. 15,000/ and multiplier of 15 as per [SECTION] of the Act and awarded compensation of Rs. 2,25,000/. Rs. 50,000 for loss of company of the child and pain and suffering. 22. In [PRECEDENT] decided on 14th July, 2009, compensation of Rs. 3,75,000/ was granted in respect of death of a child aged 7 years. 23. In [ENTITY] (supra), Hon'ble Supreme Court holding that the claimants are also entitled to compensation towards future prospects granted further compensation of Rs. 75,000/ towards future prospects of the children. Relevant part of the order is as under: "15. The real problem that arises in the cases of MACT No.361/09 [ENTITY] v. [ENTITY] 12 of 22 death of children is that they are not earning at the time of the accident. In most of the cases they were still studying and not working. However, under no stretch of imagination it can be said that the parents, who are appellants herein, have not suffered any pecuniary loss. In fact, loss of dependency by its very nature is awarded for prospective or future loss. In this context, Lord [ENTITY] aptly observed in [PRECEDENT] as follows: "In case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child's lifetime. But this will not necessarily bar the parents' claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived." xxx xxx xxx xxx 24. In [PRECEDENT] which related to the MACT No.361/09 [ENTITY] v. [ENTITY] 13 of 22 death of 8 years old child, compensation of Rs. 3,75,000/ was given out of which Rs. 2,25,000/ was awarded towards pecuniary damages following the [SECTION] of the Act, Rs. 75,000/ towards non pecuniary damages and Rs. 75,000/ towards future prospects. 25. However recently in [ENTITY] & Anr. V Lala & Ors Civil Appeal no. 7137 of 2013 dated Aug 26, 2013 with a view to grant "just and reasonable compensation" to appellants who lost their 10 years old son , Hon'ble Apex Court observed that: " For this purpose, it would be necessary for us to refer to [SECTION] under [SECTION] of the [ACT], at clause no. 6 which refers to notional income for compensation to those persons who had no income prior to accident. The relevant portion of clause no. 6 states as under: "6. Notional income for compensation to those who had no income prior to accident:
(a) Nonearning persons - Rs. 15,000/ p.a." The MACT No.361/09 [ENTITY] v. [ENTITY] 14 of 22 aforesaid clause of the [SECTION] of the [ACT], is considered by this court in the case of [ENTITY] & ors. v. State of Bihar & Ors, while examining the tortuous liability of the tortfeasor has examined the critria for awarding compensation for death of children in accident between age group of 10 to 15 years and held in the above case that the compensation shall be awarded taking the contribution of the children to the family at Rs. 12,000/ p.a and multiplier 11 has been applied taking the age of the father and then under the conventional heads the compensation of Rs. 25,000/ was awarded. Thus, a total sum of Rs. 1,57,000/ was awarded in that case. After noting the submission made on behalf of TISCO in the said case that the compensation determined for the children of all age groups could be double as in its view the determination made was grossly inadequate and the observation was further made that loss of children is irrecoupable and no amount MACT No.361/09 [ENTITY] v. [ENTITY] 15 of 22 of money could compensate the parents. Having regard to the environment from which children referred to in that case were brought up, their parents being reasonably wellplaced officials of TISCO, it was directed that the compensation amount for the children between the age group of 5 to 10 years should be three times. In other words, it should be Rs. 1.5 lakhs to which under the conventional heads a sum of Rs. 50,000/ should be added and thus total amount in each case would be Rs. 2 lakhs. Further, in the case referred to supra it has observed that in so far as the children of age group between 10 to 15 years are concerned, they are all students of Class VI to Class X and are children of employees of TISCO and one of the children was employed in the company in the said case having regard to the fact that contribution of the deceased child was taken Rs. 12,000/ p.a. appears to be on the lower side and held that the contribution of such children should be Rs.
MACT No.361/09 [ENTITY] v. [ENTITY] 16 of 22 24,000/ p.a. In our considered view, the aforesaid legal principle laid down in [ENTITY]'s case with all fours is applicable to the facts and circumstances of the case in hand having regard to the fact that the deceased was 10 years' old, who was assisting the appellants in their agricultural occupation which is an undisputed fact. We have also considered the fact that the rupee value has come down drastically from the year 1994, when the notional income of the nonearning member prior to the date of accident was fixed at Rs. 15,000/. Further the deceased boy, had he been alive would have certainly contributed substantially to the family of the appellants by working hard. In view of the aforesaid reasons, it would be just and reasonable for us to take his notional income at Rs. 30,000/and further taking the young age of the parents, namely the mother who was about 36 years old, at the time of accident, by applying the legal principles laid down in the case of Sarla Verma v.
MACT No.361/09 [ENTITY] v. [ENTITY] 17 of 22 Delhi Transport Corporation, (2009) 6 SCC 121 the multiplier of 15 can be applied to the multiplicand. Thus, 30,000 x 15=4,50,000/ and 50,000/ under conventional heads towards loss of love and affection, funeral expenses, last rites as held in [PRECEDENT] which is referred to in [ENTITY]'s case and the said amount under the conventional heads is awarded even in relation to the death of children between 10 to 15 years old. In this case also we award Rs. 50,000/ under conventional heads. In our view, for the aforesaid reasons the said amount would be fair, just and reasonable compensation to be awarded in favour of the appellants"
26. This case is squarely covered by aforesaid judgment in [ENTITY] (Supra). The age of deceased is 13 years. He was the student of 8th standard. Age of his mother as per election card issued by Election Commission of India Ex. PW1/1 was 28 years on 01.01.02. So she was 35 years old on the date of accident. It is not disputed that deceased was the only son of the petitioners. The loss suffered by his MACT No.361/09 [ENTITY] v. [ENTITY] 18 of 22 parents is irrecoupable and no amount of money can grant any solace to them. In view of the [ENTITY] (Supra) Rs. 5 lacs is awarded to petitioners.
27. Before parting with the order, I may refer to the testimony of owner of the offending vehicle who appeared in the witness box as R2W1/A. He deposed that he had seen the driving license no. 47246/TV/Z/2008 of R1 which was issued by District Transport Officer, Zunheboto Nagaland valid from 03.11.08 to 02.11.2011. Photocopy of driving license is Ex. RW2/3. As per Ex. RW2/3 R1 was licensed to drive inter alia HTV.
28. In [PRECEDENT], it was held that although initial onus is on the insurer to prove that there was breach of conditions of policy, but once it is proved the onus would shift on the insured (the owner of the vehicle) who must then step into the witness box to prove his case.
"Thus, where the insurance company alleges that the term of the policy of not entrusting the vehicle to a person other than one possessing a valid driving licence has been violated, initial onus is on the insurance company to prove that the licence concerned was a MACT No.361/09 [ENTITY] v. [ENTITY] 19 of 22 fake licence or was not a valid driving licence. This onus is capable of being easily discharged by summoning the record of the Licencing Authority and in relation thereto proving whether at all the licence was issued by the authority concerned with reference to the licence produced by the driver. Once this is established, the onus shifts on to the assured i.e. the owner of the vehicle who must then step into the witness box and prove the circumstances under which he acted; circumstances being of proof that he acted bonafide and exercised due diligence and care. It would be enough for the owner to establish that he saw the driving licence of the driver when vehicle was entrusted to him and that the same appeared to be a genuine licence. It would be enough for the owner, to discharge the onus which has shifted on to his shoulders, to establish that he tested the driving skill of the driver and satisfied himself that the driver was fit to drive the vehicle. Law does not require the owner to personally go and verify the genuineness of the licence produced by the driver".
29. R3 has taken vague plea in para 3 of its written statement that it will not be liable to pay any compensation if the driving license of R1 at the time of accident is found not to be valid. R3 has not adduced any evidence to prove that R1 did not have valid and MACT No.361/09 [ENTITY] v. [ENTITY] 20 of 22 effective driving license on the date of accident. Owner of the offending vehicle has clearly stated that he had checked driving licence of the driver before employing him. That is sufficient to exonerate him. He is not required to verify the genuineness of the driving license. That is for the insurer to prove. Insurer has not done so.
30. R3 is accordingly directed to deposit Rs. 5 lacs within 30 days with interest at the rate of 7.5% per annum from the date of filing of the petition till notice of deposit of award amount to be given by R3 to petitioners and their counsel.
31. I have heard learned counsl for petitioner regarding their financial needs. In view of the submissions and further in view of the judgment in [PRECEDENT] following arrangements are hereby ordered: An amount of Rs. 4,00,000/ with proportionate interest be given to petitioner No.1 i.e mother of deceased and Rs. 1,00,000/ with proportionate interest be given to petitioner No.2 i.e father of deceased. Rs. 50,000/ be released to petitioner no. 2 and remaining amount with proportionate interest be kept in [ENTITY] in his name for a period of one year. Rs. 1 MACT No.361/09 [ENTITY] v. [ENTITY] 21 of 22 lac be released to petitioner no.1 out of her share and remaining amount with proportionate interest be kept in [ENTITY] in her name for a period of 4 years.
32. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in their Saving Accounts.
33. The petitioners shall not have any facility of loan or advance on these [ENTITY]s. However, in case of emergent need, they may approach this Tribunal for premature encashment of [ENTITY]s.
34. The petition is accordingly disposed of. File be consigned to record room.
Announced in the open Court today i.e.05.10. 2013 Judge/MACT/NW Rohini Courts, Delhi MACT No.361/09 [ENTITY] v. [ENTITY] 22 of 22