A-16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 15.7.2011
MAC APPEAL No.695/2010
BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD.
......Petitioner
Through: Ms.Suman Bagga, Advocate.
Versus
SH.SRI NIWAS SHARMA & ORS.
Through: Mr.Arun Srivastava for
respondent no.1.
Ms.Suman Malhotra, Advocate
for respondent no.2.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
INDERMEET KAUR, J.
1. This appeal has impugned the Award dated 31.7.2010 whereby compensation in the sum of Rs.5,34,281/- had been awarded in favour of the claimants. The claimants were three in MAC APPEAL No.695/2010 Page 1 of 5 number i.e. the widower husband of the deceased and the two married sons of the deceased.
2. Facts as emanating from the record are that the petitioner on 25.1.2008 at 9.00 PM while crossing the outer ring road opposite Reliance Fresh, Meera Bagh, Paschim Vihar, New Delhi met with an accident; the offending vehicle was being driven by respondent no.1 in a high speed, rashly and negligently. Deceased sustained injuries pursuant to which she died.
3. Oral and documentary evidence was led. Issue No.1 reads as follows:
1.Whether the deceased Smt.Mithlesh had sustained fatal injuries on 25.1.2008 at about 9 p.m. on outer ring road, opposite Reliance Fresh, Meera Bagh, Paschim Vihar, Delhi due to rash and negligent driving of respondent No.1 Sh. Pankaj @ Pankaj Jaggi while driving Wagon-R Car bearing registration no.DL-9C-N2313?
4. PW-2 was an eye witness to the incident. He had stated that on the fateful day he saw a lady crossing the road when suddenly a Wagon-R came from behind at high speed being driven at high speed, rashly and negligently overtook his motor cycle and hit that lady due to which she sustained injuries. Cross-examination of PW-2 shows that nowhere has it been suggested that this witness is deposing falsely for any ulterior purpose; cross-examination of MAC APPEAL No.695/2010 Page 2 of 5 the aforenoted witness PW-2 shows that there is no reason as to why he would have deposed but for the fact that he had actually seen the incident.
5. Learned counsel for the petitioner has vehemently argued that there was contributory negligence on the part of the victim. Attention has been drawn to the site plan to substantiate this submission. The accident had occurred at point B; lady was crossing the road at point A. However this argument as submitted by the learned counsel for the appellant is not borne out in view of the fact that there is a clear and coherent version of the independent witness; it was because of the rashness and negligent act of the driver of the offending vehicle due to which the victim had sustained injuries and she succumbed to them. Applicability of doctrine of contributory negligence is negatived.
6. The other argument urged by the learned counsel for the appellant/insurance company is that the claimants are three in number of whom claimant no.1 is alone entitled to compensation; the other two claimants are not dependents being aged 35 and 33 years respectively. This submission of the learned counsel for the appellant is borne out from the record. It has also not been disputed by the learned counsel for the respondents that both the MAC APPEAL No.695/2010 Page 3 of 5 sons are married and were not financially dependent upon the deceased. A vague submission has been made by the learned counsel for the respondent that they were emotionally dependant upon their mother; however this is not supported by any evidence on record; there is also not a whisper of the same either in the pleadings or in the evidence.
7. The deceased was a housewife on the date of the accident; her notional income of Rs.3000/- has been taken into account and taking judicial notice of the fact that the minimum wages tend to increase 100% every ten years by relying upon Lata Wadhwa & Ors. Vs. State of Bihar reported in (2001) ACC 316 (Supreme Court), the income of the deceased had thus been calculated at Rs.6000/- per month. Admittedly no deduction has been made from this income. In view of the ratio of the judgment of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. reported in III (2009) ACC 708 (Supreme Court) 1/3rd amount was liable to be deducted from Rs.6000/-; the income of Rs.6000/- would thus become Rs.4000/- . Applying the multiplier of 7 to the aforenoted income of Rs.4000/- per month the total compensation awarded under the head of "loss of dependency" would be Rs.3,36,000/-.
8. The amount awarded under the non-pecuniary heads has not MAC APPEAL No.695/2010 Page 4 of 5 been challenged.
9. The modified award would accordingly be in the sum of Rs.3,66,281/- after deducting the sum of Rs.50,000/- which was the interim compensation already paid. No other modification is called for.
10. Appeal is disposed of in the above terms.
(INDERMEET KAUR) JUDGE JULY 15, 2011 nandan MAC APPEAL No.695/2010 Page 5 of 5