1 IN THE COURT OF MS. BARKHA GUPTA : JUDGE : MACT : NORTHWEST DISTT. DELHI MACT No. : 429/09 UNIQUE ID No. : 02404C0224012009 1. Sh. [ENTITY] s/o Late Sh. Jotram (father of deceased) (Petitioner No.1) 2. Smt. [ENTITY] w/o Sh. [ENTITY] (Daughter of deceased) (Petitioner No.2) Both R/o 36D, BG/RBI Flats, West Shalimar Bagh, Delhi Also at: 9/36D, RBI Flat, Shalimar Bagh, Delhi88 Versus 1. [ENTITY] S/o Sh. Raja Ram R/o 485, Gali Chopal Wali, Shalimar Bagh Village, Delhi. (Driver/Respondent No.1)
2. Sh. [ENTITY] S/o Sh. Nem Chand R/o 3766/3, Gali No. 3, Kanhaiya Nagar, Tri Nagar, Delhi (Owner/Respondent No.2) Suit No.429/09 [ENTITY] v. [ENTITY] 1 of 18 Other details:
DATE OF INSTITUTION : 02.07.2009 DATE OF RESERVING ORDER : 13.08.2014 DATE OF PRONOUNCEMENT :23.08.2014 AWARD/JUDGMENT 1. The petitioners No.1 & 2 namely Sh. [ENTITY] and
Smt. [ENTITY], who are father and mother of deceased namely Sh. [ENTITY] and Smt. [ENTITY] have filed the petition under [SECTION] & [SECTION] of the [ACT], claiming compensation of an amount of Rs. 20,00,000/ from the respondents for untimely and unfortunate death of Sh. [ENTITY] (hereinafter referred to as the 'deceased'), who died in the road accident.
2. The case of the petitioners in brief is that on 17.05.2009, Sh. [ENTITY] ( since deceased) was going on motorcycle bearing registration No. DL8SAK9694 and at about 3:15 p.m, when the deceased reached at road no. 37, Near B3, Bus Stand Opposite B3 Block, Keshavpuram, Delhi, then a motorcycle (TVS Star City) bearing registration No. DL8SAH6416 (i.e the offending vehicle) which at the relevant time was driven by Suit No.429/09 [ENTITY] v. [ENTITY] 2 of 18 Sh. [ENTITY] (R1) at a very high speed and in a rash and negligent manner came and hit the motorcycle of the deceased due to which the deceased fell down and sustained injuries who was admitted in Sunder Lal Jain hospital where he expired on 18.05.09 due to the injuries sustained in the said accident The petitioners have further submitted that the deceased was a healthy person of 23 yrs of age who was working as a salesman and he was earning Rs. 5,000/ per month. The petitioners have also submitted that Sh. [ENTITY]/R1 was driving the offending vehicle at the relevant time, Sh. [ENTITY]/R2 is the owner of the offending vehicle and both of them are jointly and severely liable to pay the compensation amount to them as the offending vehicle was not insured. It is also submitted that qua the said accident, FIR No.124/09 u/[SECTION] [ACT] & [SECTION] [ACT] was also registered at PS Keshav Puram, Delhi.
3. In the present case, as per record Sh. [ENTITY]/R1 (driver) and Sh. [ENTITY] (owner) have not filed any written statement or reply to the petition and vide Suit No.429/09 [ENTITY] v. [ENTITY] 3 of 18 order dated 10.12.09, they were proceeded exparte by my ld predecessor.
4. I have heard final arguments as advanced by Advocate Sh. [ENTITY], Ld. Counsel for the petitioners. It needs to be discussed even at the cost of repetition that R1 and R2 are already exparte and none has appeared for R1 & R2 to advance final arguments.
5. The petitioners, in support of their have examined the petitioner no.1 namely Sh. [ENTITY] (father of deceased) as PW1 and [ENTITY] (No. 2895/0323 PS K. Puram) as PW2. As per record, none of the respondents have adduced any evidence on record.
6. Sh. [ENTITY] (PW1) who is the father of deceased has lead his evidence by way of affidavit which is Ex. PW1/A and has also relied upon certain documents as Ex. PW1/1 to PW1/4. The attested copy of the ration card is Ex. PW1/1, copies of his election identity card and election Card of petitioner no. 2 are Ex. PW1/2 (colly 2 pages), copies of tenth class certificate and tenth class mark sheet of the deceased is Ex. PW1/3 and the Suit No.429/09 [ENTITY] v. [ENTITY] 4 of 18 original death certificate of deceased is Ex. PW1/4.
In his affidavit Ex. PW1/A, Sh. [ENTITY] has testified that he is the father of deceased who met with a road accident on 17.05.09 at road no. 37 near B3, Bus Stand Opposite B3 Block, Keshavpuram, Delhi and he died on 18.05.09 due to various injuries sustained in the said accident. He has further testified that the deceased was unmarried and was employed as a salesman in pharmaceuticals/medicine and he was earning Rs. 5,000/ per month. He has also testified that he and the petitioner no. 2 were dependent upon the deceased.
It is pertinent to discuss that as per record, R1 & R2 who are the driver and owner of the offending vehicle are already ex parte and none of them have crossexamined PW1 on any aspect whatsoever and accordingly, the entire testimony of PW1 has remained unrebutted, uncontroverted and unchallenged by both the said respondents. Accordingly, it is nowhere disputed that at the relevant date, time and place, R1 was driving the offending vehicle in a rash and negligent manner and caused the said accident wherein deceased had expired. Suit No.429/09 [ENTITY] v. [ENTITY] 5 of 18
7. [ENTITY] (No. 2895/0323 PS K. Puram, Delhi) is examined as PW2, who is an eye witness of the occurrence/accident who has testified that on 17.05.09, he was on duty at PS K. Puram from 8:00 am to 8:00 pm and at about 3:15 pm, he was standing at B3 Block, Keshav Puram, Delhi, on duty and saw that the offending vehicle came at a very high speed from B3 Block, K. Puram side and it took a steep cut without giving any indication from the metro pillar no. 37 and it hit the motorcycle no. DL8SAK9694 driven by the deceased due to which the deceased fell down and sustained injuries and one public person took him to Sundar Lal Jain hospital. He has also testified that the name of injured was [ENTITY] and the name of the driver of offending vehicle was revealed as [ENTITY], who was apprehended at the spot itself. He has further deposed that his statement was also recorded which is Ex. PW2/1 and has also proved the certified copies of criminal case record as colly Ex. PW2/2 (19 pages). He has also deposed that the said accident had occurred due to rash and negligent driving of Sh. [ENTITY]/R1.
Suit No.429/09 [ENTITY] v. [ENTITY] 6 of 18 As already discussed earlier, R1 and R2 who are the driver and owner of the offending vehicle are already exparte and they have preferred not to file even any written statement/reply to the petition. As per record admittedly, PW2 is the most material witness being an eye witness of the accident and has narrated the details and the manner in which said accident occurred wherein the deceased had sustained injuries at the hands of R1 who was driving the offending vehicle rashly and negligently and due to the said injuries, the deceased had expired. It is pertinent to discuss that PW2 is not cross examined on any aspect at all by any of the respondents and his entire testimony has remained unrebutted, uncontroverted and unchallenged in entirety. Accordingly in the given facts and circumstances and on the basis of material as placed on record, the only reasonable conclusion that can be drawn is that R1 & R2 have nothing to offer to PW2 who is an eye witness to the occurrence and has testified that at the relevant date, time and place, R1 was driving the offending vehicle in a rash and negligent manner and caused the said accident wherein deceased had expired. As such, there Suit No.429/09 [ENTITY] v. [ENTITY] 7 of 18 is not reason to disbelieve the version of PW2 qua the factum of accident or the manner in which R1had caused the said accident wherein deceased sustained injuries and he expired. It is accordingly duly established on record that the said accident was caused by R1 while driving the offending vehicle in a rash and negligent manner and he hit against the motorcycle of the deceased due to which the deceased fell down and he died as a result of injuries sustained in the accident.
Further, the copies of criminal case are also placed on record, including the copy of FIR, charge sheet u/[SECTION] [ACT], postmortem report of the deceased etc. which clearly show that Sh. [ENTITY]/R1 was arrested and prosecuted in the said case regarding causing the present accident wherein the deceased had sustained injuries and he expired due to injuries received in the accident and the offending vehicle was also seized. Further, the Postmortem examination report of the deceased is also placed on record wherein the doctor has opined that " cause of death in this case is craniocerebral injury caused by the blunt force impact. All injuries are antemortem in Suit No.429/09 [ENTITY] v. [ENTITY] 8 of 18 nature". It is accordingly established on record that the cause of death of the deceased is due to various injuries sustained in the accident caused by R1 as already discussed. It is nowhere shown on record or even whispered that R1 is falsely implicated and there is nothing on record to show that R1 had made any complaint to anyone regarding his false implication in the case. There is nothing on record to suggest even remotely if R1 did not cause the said accident in the manner as narrated by the petitioners in which regard PW2 [ENTITY], who is an eye witness is examined whose testimony is nowhere shaken or shattered and there is no reason to disbelieve his version. Though, the petitioner no. 1 (PW1) is not any eye witness and he has clearly stated so, however, PW2 who had seen the accident has testified before the court in a cogent and convincing manner and has narrated the true picture of accident as discussed earlier. Accordingly, in view of the totality and fact and circumstances of the case and on the basis of material available on record, there is no reason to disbelieve the version of PW2 on any court. Accordingly, the court of the considered Suit No.429/09 [ENTITY] v. [ENTITY] 9 of 18 opinion that at the relevant date, time and place, Sh. [ENTITY]/R1 was driving the offending vehicle in a rash and negligent manner and caused the said accident due to which the deceased had lost his life.
8. As per record, the petitioner no.1 namely Sh. [ENTITY] (PW1) has interalia deposed that the deceased was working as a salesman and was earning Rs. 5,000/ p.m, however, he has not filed any document to show the income of the deceased. Further, regarding the educational qualifications of deceased, the 10th certificate of deceased is filed on record which is Ex. PW1/3, which show that he was 10th class pass.
In the given facts and circumstances, in the case in hand, the minimum wage of matriculate of Rs. 4,382/ which was prevalent as on the date of accident would be taken into consideration and it is accordingly considered that the deceased was earning Rs. 4382/ p.m. as on that date on the date of accident .
Further, as per document Ex. PW1/3, which is the 10th class certificate of the deceased [ENTITY], his date of birth is shown Suit No.429/09 [ENTITY] v. [ENTITY] 10 of 18 as 20.013.1986, which is not in dispute and hence, the deceased was 23 years 3 months and 28 days old as on the date of accident. Accordingly, the multiplier of '18' would be applicable in this case as per observations made in the case of [ENTITY] & Ors. v. DTC & Anr. Civill Appeal No. 3483 of 2008 (arising out of [CASE NUMBER]) dated April 15, 2009.
9. As per settled proposition of law, the amount of compensation has to reasonable, fair and equiatable. In the case [ENTITY] & Others v. Rajbir Singh & Others 2013(6) SCALE 563, the deceased was around 33 years of age at the time of accident/death. He was survived by his widow and minor children. He was working as a clerk in a Government School. On appeal, the Hon'ble High Court enhanced the total compensation to Rs. 10,17,000/ from Rs. 8,96,500/. On further appeal Hon'ble Apex Court, the compensation amount was further enhanced to Rs. 22,81,320/ and it further observed that compensation under [SECTION] [ACT] has to be "just, fair and equitable" to make good the loss suffered as a result of the Suit No.429/09 [ENTITY] v. [ENTITY] 11 of 18 wrong as far as money can do.
10. Further, the Hon'ble the Apex Court in the case of [ENTITY] v. National Insurance Company Ltd. & Others 2012(4) SCALE 559 has observed that even in absence of any evidence as to future prospects, an increase of 30% in the income has to be provided where the victim had fixed income or was a self employed person. Relevant extract of the order is as follows: "18. 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 selfemployed or who is paid fixed wages.
Rather, it would be reasonable to say that a person who is selfemployed 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 deserves to be applied for calculating the amount of compensation." Further, to make compensation just fair and equitable, the Suit No.429/09 [ENTITY] v. [ENTITY] 12 of 18 Hon'ble Apex Court has also observed in the said case that: "11. Since, the Court in [ENTITY]'s case (supra) actually intended to follow the principle in the case of salaried persons as laid in [ENTITY]'s case (supra) and to make it applicable also to the selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.
12. In [ENTITY]'s case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age Suit No.429/09 [ENTITY] v. [ENTITY] 13 of 18 group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter".
Accordingly, in the case in hand, 50% addition is to be made as per guidelines of the Hon'ble Apex Court.
11. Deduction towards personal and living expenses In the case in hand, the deceased is survived by his parents only i.e. petitioners no.1 and 2 and they are the only legal heirs and as such, 1/2 of his income is to be deducted towards his personal and living expenses as per observations made in the case of [ENTITY] (Supra)
12. Calculation Minimum wage Rs.4,382/ pm. Addition of 50% towards inflation Rs.4,382/ + 2,191 = 6,573/ Deduction of 1/2 as per [ENTITY] Rs.6,573 -3,286= 3,287/ The loss of dependency comes to Rs. 7,09,992/ (Rs.3,287X12X18)
13. Now, regarding the amount of compensation payable Suit No.429/09 [ENTITY] v. [ENTITY] 14 of 18 towards funeral expenses, it was observed in the case of [ENTITY] & Ors (Supra) that: "We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head 'Funeral Expenses". The 'Price Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/."
In view of the above, in the case in hand, an amount of Rs. 25,000/ is granted to the petitioners towards funeral expenses of deceased and further, an amount of Rs. 10,000/ is also granted to them towards loss of Estate.
14. Further, following the observations in the case of [ENTITY] Suit No.429/09 [ENTITY] v. [ENTITY] 15 of 18 (Supra) in [PRECEDENT] Hon'ble High Court of Delhi, vide its order dated 25th Oct, 2013 had granted Rs. 1,00,000/ towards loss of love and affection. Accordingly, in view of totality of facts and circumstances, in the present case, on the basis of above, an amount of Rs. 1,00,000/ is also granted to the petitioners towards loss of love and affection.
15. In view of totality of facts and circumstances of the case and in view of above, the over all compensation amount to be awarded to the petitioners thus comes to Rs.8,44,992/ which is tabulated as below: Sl. No Compensation under various heads Amount awarded
1. Loss of dependency Rs.7,09,992/
2. Loss of love & affection Rs. 1,00,000/
3. Funeral expenses Rs. 25,000/
4. Loss of estate Rs. 10,000/
5. Total Rs. 8,44,992/
16. In the case in hand, as per record, as already discussed, the offending vehicle was not insured. Hence, in the given facts and circumstances, Sh. [ENTITY] (R1) Driver, and Sh. Sanjay Suit No.429/09 [ENTITY] v. [ENTITY] 16 of 18 [ENTITY] (R2) owner of the offending vehicle are jointly and severally liable to pay the compensation to petitioners and accordingly, they are directed to deposit with this Tribunal within 30 days from today the awarded amount of Rs.8,44,992/ along 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 them to petitioners and their counsel.
17. I have heard ld counsel for the petitioners regarding the financial needs of the petitioners. In view of the submissions made and further in view of the judgment in [PRECEDENT] following arrangement is hereby ordered: Out of awarded amount, equal amount be apportioned to each of the petitioners and out it, an amount of Rs. 2,00,000/ be released to each of the petitioners and rest of the amount be kept in [ENTITY] in their names for a period of 3 years in any nationalised bank.
18. The interest on the aforesaid fixed deposits shall be paid Suit No.429/09 [ENTITY] v. [ENTITY] 17 of 18 quarterly by automatic credit of interest in the Saving Accounts.
19. The petitioners shall not have any facility of loan or advance on [ENTITY]s. However, in case of emergent need, they may approach this Tribunal for premature encashment of [ENTITY]'s. The petition is accordingly disposed of. File be consigned to record room as per rules.
([ENTITY]) Announced in the open Court Judge MACT today i.e.23.08. 2014 Rohini Courts, Delhi Suit No.429/09 [ENTITY] v. [ENTITY] 18 of 18