Delhi District CourtMs. Vidya Devi vs 2 on 11 December, 20081

      IN THE COURT OF MS.SWARANA KANTA SHARMA:
                   JUDGE MACT : DELHI


SUIT NO 626/08


1.Ms. Vidya Devi
  W/o. Late Sh. Kishori Lal.

2.Sh. Arun Kumar
  S/o. Late Sh. Kishori Lal.

3. Mrs. Shashi Kala,
   W/o. Sh. Dinesh Kumar.

4. Mrs. Prem Lata,
  W/o. Kuldeep

5. Miss Krishna,
  D/o. Late Sh. Kishori Lal.

6. Mr. Hemant Kumar
  S/o. Late Sh. Kishori Lal.


All are resident of
  67/5322, Regarpura,
  Karol Bagh,
  New Delhi.
                                      ......... Petitioners


                         Versus
                                       2



1.Sh. Shish Ram Gurjar,
  S/o. Sh. Khyali Ram Gurjar,
  R/o. Morda, Kutputli,
  Jaipur,
  Rajasthan.
                                                                    (Driver)

2.The Oriental Insurance Company Limited,
  88, Janpath,
  New Delhi - 110001.
                                                                  (Insurer)

                                             ........ Respondents

                          DATE OF INSTITUTION : 23.04.2007

                          DATE OF DECISION: 11.12.2008

JUDGMENT1.           The present claim petition has been filed undersection 163

     Aof the M.V. Act.2.           The brief facts giving rise to the present petition are that on

     15.2.2007 between 10 to 11 PM, an accident had taken place at

     Babra, Bankipur, under P.S. Farukh Nagar, Gurgaon with Truck

     Trolla bearing registration no. HR-66/3248 owned by respondent3no. 1 which had resulted into death of the deceased.3.          Written statement was filed by Respondent no.2, Oriental

     Insurance Company Limited wherein it is stated that petition does

     not disclose any cause of action. However, it is admitted that

     vehicle bearing registration no. HR-66/3248, Tata Tractor was

     insured with respondent no. 1 vide policy no. 241100/2007/3868 in

     the name of Sh. Shish Ram Gurjar, respondent no.1 and the

     insurance policy was valid from 17.11.2006 to 16.11.2007.4.          During the course of proceedings, the respondent no. 1 was

     proceeded ex-parte vide order dated 16.11.2007.5.          On the basis of the pleadings of the parties, the following

     issues were framed during the course of trial:-(i)    Whether death of Sh. Kishori Lal arise out of use of

     Truck Trolla No. HR-66/3248?(ii)   To what amount of compensation the claimants are4entitled to and from whom.(iii)   Relief.6.           The petitioner in support of their claim have examined only

     one witness.7.           PW-1 Smt. Vidya Devi, who is the petitioner, tendered her

     evidence by way of affidavit Ex.PW1/X stated therein that the

     deceased Sh. Kishori Lal was her husband who was aged about 62

     years at the time of accident. He had met with an accident and had

     died. She stated that her husband was in private service and was

     earning Rs. 3,300/- per month. She also stated that the petitioners

     are the only legal heirs of the deceased.On being cross-examined by Ld counsel for insurance

     company she stated that in the ration card the date of birth of her

     husband has been shown as 1945.Certified copies of the challan were also filed which are Ex.

     P1.58.           Thereafter petitioner's evidence was closed9.           The respondent insurance company did not lead any

     evidence in respect of the case.10.          I have heard arguments and I have gone through the case

     file and accordingly I record my findings on issues as follows:-11.Issue No.1:Whether death of Sh. Kishori Lal arise out of use of Truck
     Trolla No. HR-66/3248?Petitioner has stated in her statement that she had been

     informed through the police that her husband had died in an

     accident with a vehicle i.e. Truck Trolla owned by respondent no. 1

     bearing registration no. HR-66/3248 which had taken          place at

     Babra, Bankipur, under P.S. Farukh Nagar, Gurgaon on 15.2.2007

     between 10 to 11 PM.A perusal of the FIR regarding the present accident and the6challan has also been concluded that the deceased had died due to

  use and involvement of Truck Trolla bearing registration no. HR-

  66/3248 .A perusal of the post mortem report also shows that the

  cause of death has been given as crush injury leading to death

  which could have been caused by a road traffic accident.It is, therefore, proved that the deceased had died due to

  use and involvement of vehicle bearing registration no.          HR-

  66/3248.       Therefore,   issue no. 1 is decided in favour of the

  petitioners.16. Issue No. 2:To what amount of compensation the claimants are entitled to
  and from whom.Since, issue no.1 has been decided in favour of the

  petitioner that the deceased had died due to the injuries sustained

  in the accident with the offending vehicle and no contrary evidence

  has been brought on record;           the petitioners are entitled to7compensation under theMotor Vehicle Act.18. LOSS OF DEPENDENCY.The petitioner has stated in her statement that the

deceased was earning Rs. 3,300/- per month and was contributing

the entire salary towards his household expenses.        No contrary

evidence has been brought on record.        However, in her cross-

examination, the petitioner has admitted that the date of birth of her

husband has been shown as 1945 in the ration card. There is no

other proof of date of birth of the deceased. Therefore, I consider

the date of birth of the deceased to be 1945. Therefore, his age at

the time of accident will be 62 years.The case has been filed undersection 163Aof Motor

Vehicle Act. As per Schedule 2 of 163A Motor Vehicle Act, the

multiplier of 5 has to be taken.It is well settled principle of law that the deceased would

have been spending 1/3 of his income on himself.8Therefore,    total    loss   of    dependency      would   be

Rs.3,300x5x12x2/3 which comes to Rs. 1,32,000/-. Therefore

petitioner is entitled to a sum of Rs.1,32,000/- towards loss of

dependency.19. LOSS OF LOVE AND AFFECTION.Petitioners have lost their father and petitioner no. 1 has

lost her husband in the present accident. Money cannot

compensate the loss of affection that they had lost due to the

accident.   I,   however,     considering   the   overall   facts   and

circumstances of the case, award a sum of Rs. 30,000/- to

petitioners towards loss of love and affection.20. FUNERAL EXPENSES.Rs.5,000/- is awarded on account of funeral expenses.21. LOSS TO ESTATE.I award Rs 5,000/- on account of loss to estate to petitioner.922. RELIEF

          In view of my findings on issues no. 1 and 2 the petitioners

  are   entitled to the following compensation in the present claim

  petitioner

          Loss of dependency                 : Rs. 1,32,000

          Loss of Love and affection         :Rs.30,000/-Funeral Expenses                   :Rs.5,000/-

          Loss to estate                     :Rs.5,000/-

          Total compensation                 : Rs. 1,72,000/-23.     Therefore total compensation is Rs. 1,72,000/-. Petitioners

  are also entitled to the interest at the rate of 7.5% per annum from

  the date of filing of petition i.e. 23.4.2007 till its realization.24.       Petitioner no. 1 Ms. Vidya Devi is the wife of the deceased.

  Petitioner no. 2 Sh. Arun Kumar is the son of the deceased and10has been shown to be 33 years of age. Petitioner no. 3 Ms. Shashi

  Kala and petitioner no. 4 Mrs. Prem Lata are the married daughters

  of the deceased. Petitioner no. 5 Miss Krishna, aged 25 years and

  petitioner no. 6 Mr. Hemant Kumar, aged 23 years are the

  unmarried   daughter    and   unmarried      son   of   the   deceased

  respectively. It is, therefore, cleared that petitioner no. 2,3 and 4

  were not financially dependent on the deceased.25.      Vide judgment dated 04.11.2008 "United India Insurance

  Co. Ltd. Vs. Smt Reeta Devi & Ors." the Hon'ble High Court has

  been pleased to issue directions that the formula mentioned in this

  judgment will be followed for disbursement of the award amount.

  Applying the same formula aslaid down inthe said judgmentthe

  disbursement of award will be as follows :26.      Since deceased was earning Rs. 3,300/- per month and

  was contributing about Rs. 2,200/- p.m. towards his family

  members who are the present claimants, the share of each of11claimant under these circumstances, is assessed as under:1. Ms. Vidya Devi                  Rs. 15,00/- p.m.2. Miss Krishna                    Rs. 350/- p.m.3. Mr. Hemant Kumar                Rs. 350/- p.m.27.       The present claim petition was filed on 23.4.2007. Now,

  the claim petition is being decided in December, 2008. By this date

  about 20 months would have passed. So, for these 20 months,

  claimants are entitled to compensation @ Rs. 3,300/- p.m. and

  accordingly for this period, the amount comes to Rs. 3,300 x 20 =

  66,000/- Out of Rs. 66,000/-, Rs. 40,000/- be paid to the petitioner

  no. 1, Ms. Vidya Devi while Rs. 13,000/- each be paid to petitioner

  no. 5 Miss Krishna and petitioner no. 6 Mr. Hemant Kumar who re

  the unmarried daughter and unmarried son of the deceased.28.       As far as compensation for future period is concerned, i.e.

  from 1.1.2009 onwards, petitioner no. 1, Ms. Vidya Devi shall be

  paid Rs. 1,500/- p.m. till she is alive.1229.       Petitioner no. 5, Miss Krishna will be paid monthly payment

  of Rs. 350/- till she gets married.30.       Petitioner no. 6, Mr. Hemant Kumar will be paid monthly

  payment of Rs. 350/- till he gets married.31.       All the three claimants shall have to furnish "Life Certificate"to the Oriental Insurance company Limited once in a year i.e. in the

  month of January every year. However, Miss Krishna and Mr.

  Hemant Kumar shall have to furnish a certificate to this effect also

  that they have not married. These certificates are to be submitted

  to the Insurance Company in January, 2009 and thereafter every

  year.32.       Further, keeping in view the run-away inflation and price

  rise and the fact that deceased's salary would have increased with

  the passage of time, the Claimants shall be entitled to increase in13compensation by 25% after every 5 years on their monthly

  compensation i.e. the claimants shall get 25% increase in the

  monthly compensation with effect from January 2014 and second

  increase w.e.f. 2019 and so on, subject to the abovesaid limitation

  in respect of getting married by petitioner no. 5 and petitioner no. 6,

  Miss Krishna and Mr. Hemant Kumar and subject to petitioner no.

  1, Ms. Vidya Devi till she is alive.33.       The Oriental Insurance Company shall sent the respective

  share of monthly payment to the calimants by way of crossed

  cheques by 10th of every month at the addresses mentioned in the

  memo of the parties or at any other address to be furnished by the

  claimants to the Insurance Company directly.34.       In case, there is any default on the part of the insurance

  company in making payment in time, the claimants shall be entitled

  to interest at the rate of 10% (ten per cent) per annum for the

  delayed payment.1435.       As far as compensation from the date of filing of the petition

  i.e. from 23.4.2007 till December, 2008 is concerned, this amount

  of compensation i.e. Rs. 66,000/- as already stated above, shall be

  deposited by respondents within a period of two months from today

  failing which appellant shall be liable to pay interest @ 10% p.a.

  from the date of this judgment till realization.36.       Out of this, Rs. 40,000/- being the share of petitioner no.1

  and Rs. 13,000/- each being the share of petitioner no. 5 and 6 be

  paid to them by way of 'Account Payee' cheque in their name.37.       Respondent no. 1 and respondent no. 2 being driver and

  owner of the offending vehicle are jointly and severally liable to pay

  the amount of compensation to petitioners.38.       Therefore Respondent no.1 being driver and respondent

  no. 2 being insurer of the offending vehicle are jointly and severally15liable to make the payment of compensation to petitioners.39.       Respondent no 2 is directed to place on record the cheque

  of compensation within 30 days.      File be consigned to Record

  Room. Copy of the order be given dasti to retainer of insurance

  company for compliance.Announced in open court               (SWARANA KANTA SHARMA)
on 11.12.2008                           JUDGE : MACT : DELHI