IN THE COURT OF SHRI [ENTITY] PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL (WEST) :DELHI Case No. : 287/09 Unique ID No. 02410C0182312009 1. Smt. [ENTITY] W/o Late Sh [ENTITY] 2. [ENTITY] 3. [ENTITY] (both sons of Late Sh [ENTITY] and both being minor through their mother petitioner no.1 being natural guardian) All R/o B-130, IIIrd Floor, Hari Nagar, New Delhi-110064 Petitioners Versus 1. Sh. [ENTITY] s/o S. Aroor Singh R/o V & P.O. Sarhali Manda, Teh. Patti Amritsar, Punjab Also service through: G.M.Punjab Roadways, Amritsar-I, Punjab(Driver) 2. [ENTITY] (PUNBUS) through its Managing Director/ Depot Manager Jeevan Deep Building, Sect-17, Chandigarh 3. [ENTITY]. Insurance Company (Particulars not provided by any party) 5. M/s Providers Managing Enforcement Pvt. Ltd. Through its Managing Director/ In-charge Office At SCO No.3, 2nd Floor, Sector-36-C, Chandigarh Respondents
Date of Institution: : 19/02/2009 Date of reserving order/judgment : 01/08/2012 Date of pronouncement: : 06/08/2012 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 22/09/08 at about 10.00 p.m while the deceased boarded the bus bearing no. PB 02-AZ-6503(PUNBUS) from ISBT, Delhi to Punjab, which is owned by respondents No. 2 & 3, which was being driven by its driver/ respondent No.1 and while the said bus reached at Phagwara in front of JTC Mill on GT Road on 23/09/08 at about 4.30 a.m dashed with a trolly containing bricks . Resultantly, the deceased died after falling down from the bus as a result of impact. In total the petitioners have claimed a total sum of Rs. 50,00,000/- on account of compensation.
3. The written statement was filed by respondent no.1/ driver wherein the 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 respondents No. 2 & 3 wherein they categorically denied the rash and negligent aspect and also termed the contents of the petition to the false one.
5. The respondent No.4 was shown to be insurer but no particulars were filed by the petitioner or any other respondent in the petition.
6. The respondent No.5 was informed to be the agency who provides the driver to the respondents No.2 & 3. The petitioner have already in her statement stated that they are not claiming anything from respondent No.5.
7. On the pleadings of the parties following issues arose for consideration on 03/05/2011.
1.Whether the deceased Sh. [ENTITY] suffered fatal injuries in an accident that took place on 23/09/08 at about 4.30 a.m involving Bus bearing No. PB-02-AZ-6503 driven by respondent No.1 and owned by respondent No.2,3 & 5? OPP
2.Whether the petitioners are entitled to any compensation? If so, to what amount and from whom?
3. Relief.
8. In order to establish its claim, the petitioner No.1,wife of deceased examined herself as PW-1 and Sh. [ENTITY], the pillion rider being the eye witness as PW-2. The respondents did not examine any witness in its defence.
9. 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 :-
10. 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.
11. PW-1 & PW-2 have explained the mode and manner of the accident in their affidavits, Ex. PW1/A and Ex. PW2/A to the effect that on the date of accident on 22/09/08 at about 10.00 p.m while the deceased boarded the bus bearing no. PB 02- AZ-6503(PUNBUS) from ISBT, Delhi to Punjab, which is owned by respondents No. 2 & 3 which was being driven by its driver/ respondent No.1 and while the said bus reached at Phagwara in front of JTC Mill on GT Road on 23/09/08 at about 4.30 a.m dashed with a trolly containing bricks . Resultantly, the deceased died after falling down from the bus as a result of impact. The cross-examination was not carried on by the respondents to rebut the testimonies of both the witnesses despite opportunities.
12. The petitioners have filed the attested copy of the criminal record pertaining to case FIR etc. bearing No. 293/2008, P.S. City Phagwara,Distt. Kapurthala, Punjab u/s [SECTION] [ACT].
13. 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 [PRECEDENT] 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.
14. 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 [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."
15. Therefore, reading all the documents filed by the petitioners as a whole it is clear that respondent No.1 was driving the vehicle in a rash and negligent manner.
16. The issue No:1 therefore, stands in favour of the petitioners and against the respondents.
COMPENSATION :
17. The School Certificate shows the date of birth of the deceased to be as 06/06/1964. The date of accident was 23/09/08. Accordingly the deceased was 44 years of age as on the date of accident.
18. The deceased was stated to be doing his own business and stated to be earning Rs. 15,000/- per month, but no income proof filed or proved on record. It is apparent from the certificate issued by the Vice Principal of the School that deceased had studied upto 11th standard. In these circumstances, the income of the deceased can very well be assessed on the basis of the chart available in the [ACT]. The date of accident was 23/09/08 on which the minimum wages for the matriculate person were Rs. 4131/-. For assessing the per month future income of petitioner on the basis of inflation trends etc., I am being guided by judgment of the Hon'ble Supreme Court in [CASE NUMBER] decided on 23/04/2012 in [PRECEDENT] & ors in which it was held that:-
"14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 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 Courts will usually take only the actual income at the time of death a departure from this rule should be made only in rare and exceptional cases involving special circumstance. 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/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 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 provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has 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 this fact that with a view to meet the challenges posed by high cost of living, the persons falling on the latter 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 cloths. 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 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserved to be applied for calculating the amount of compensation".
19. The Hon'ble High Court of Delhi in its latest document in [CASE NUMBER] decided on 19/07/12 in case titled as [PRECEDENT] also gave judgments on the same lines.
20. Hence after applying the aforesaid judgments, the income of deceased comes out to be Rs. 5370.3 p. (Rs. 4131/- + 4131/- x 30%).
21. It can very well be presumed in terms of the judgment of the Hon'ble Supreme Court of India in [ENTITY] Vs. DTC decided on 15.4.2009 in [CASE NUMBER] that the deceased might have been spending one- fourth of Rs. 4787.9 p. on his personal expenses as he had left behind three dependents . Therefore, after deducting one- third towards personal expenses, the loss of dependency per month comes out to be Rs. 5370.3 p. less Rs. 1790.1 p. = Rs.3580.2 p. The appropriate multiplier applicable is 14, as mentioned in [ENTITY]'s judgment (Supra). The total loss of dependency comes out to Rs. = 6,01,473.6 p., rounded off to Rs. 6,01,474/- (Rs. 3580.2 p.x 12 x 14) .
22. Regarding loss of love and affection, I am guided by the judgment of Hon'ble High Court of Delhi in [CASE NUMBER] in case titled as '[PRECEDENT]' decided on 19/07/2012 by Hon'ble Mr. Justice [ENTITY] wherein it was held as under:-
"8. It is urged that the compensation of Rs. 1,00,000/- awarded towards loss of love and affection is excessive. Normally, when full compensation towards loss of dependency is granted only a nominal sum is awarded towards loss of love and affect. The trend of the High Court and the Supreme Court is to grant a sum of Rs.25,000/- under this head. Such a sum was granted by the Supreme Court in [PRECEDENT] and in [PRECEDENT] towards love and affection. However, in a later judgment in [PRECEDENT], in case of a death of bachelor, a compensation of Rs. 1,00,000/- was awarded by the Supreme Court. In the circumstances, I am not inclined to interfere in the award of compensation of Rs 100,000/- towards love and affection.
9. The Claims Tribunal awarded a sum of Rs. 25,000/- towards funeral expenses, which in the absence of any evidence as to the actual expenditures is on the higher side. The same is reduced to Rs. 10,000/-. The Claims Tribunal did not award any compensation towards loss to estate. I make a provision for a sum of Rs. 10,000/-".
23. In terms of the aforesaid judgment passed by the Hon'ble High Court of Delhi, I award Rs. 10,000/- towards funeral charges; Rs. 1,00,000/- towards love and affection; Rs. 10,000/- for loss of consortium and Rs. 10,000/- towards loss of estate. Therefore, in total I hereby award for a sum of Rs. 7,31,474/- in favour of the petitioners and against the respondents No.1, 2 & 3. The petitioner No.5 was reported to be the agency who had provided driver to respondent No.2 & 3 as informed by Ld. Counsel for petitioners.
RELIEF:
24. I award Rs. 7,31,474/- ( Rupees Seven Lakhs Thirty One Thousand Four Hundred Seventy Four 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. 19/02/2009 (DAR) till the notice under [SECTION] is given by the insurance company, in favour of the petitioners and against the respondents No.1,2 & 3 on account of their liability being joint and several. The petitioner No.1( wife of deceased) shall have share of 60% in the award amount and petitioners No. 2 & 3 (minor children of deceased) shall have share of 20% each in the award amount.
25. Acting on the guidelines issued by Hon'ble Supreme Court of India [PRECEDENT] in order to avoid the money being frittered away, fifty percent(50%) of the amount awarded to petitioner No.1 shall be kept in 5 FDRs of almost equal amount in a Nationalized Bank for a period of 1,2,3,4 & 5 years. In case any petitioner/petitioners is/ are minor/minors, the entire amount awarded to petitioner/ petitioners shall be kept in FDRs in a nationalized bank till he/she attain/ attains the age of majority or for a period of five years whichever is later. No loan or advance shall be allowed against the said fixed deposit. Petitioner No.1 can withdraw the interest quarterly from the said FDRs. The minor petitioners, if any can withdraw the interest quarterly through their mother/ petitioner No.1.
26. The respondents No. 2 & 3 being the owners are liable to pay the award amount and they are directed deposit the award amount before this Tribunal within a period of 30 days in the name of the petitioner/ petitioners in terms of the award. In case of any delay, they shall be liable to pay interest at a rate of 12% per annum for the period of delay.
File be consigned to Record Room.
Announced in the open court On 6th August, 2012 ([ENTITY]) JUDGE: MACT (WEST):DELHI 01/08/2012 Present: None. Orders not ready. Put up for orders on 04/08/2012. ([ENTITY]) PO: MACT(WEST) : DELHI 04/08/2012 Present: None. Orders not ready. Put up for orders on 06/08/2012. ([ENTITY]) PO: MACT(WEST) : DELHI 06/08/2012 Present: None.
Judgment announced vide separate sheets of even date.
File be consigned to Record Room.
([ENTITY]) PO: MACT(WEST) : DELHI