Anita Devi & Ors. vs New India Assurance Co. Ltd. & Ors.

$~27

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 2nd May, 2012
+       MAC. APP No.492/2009

        ANITA DEVI & ORS.                   ..... Appellants
                      Through:         Mr. Amit Kumar                Pandey,
                                       Advocates

                       Versus

        NEW INDIA ASSURANCE CO. LTD. & ORS.
                                    ..... Respondents
                     Through: Mr. S.L. Gupta, Advocate for
                              the Respondent No.1 Insurance
                              Company.


        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL

                            JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellants impugn a judgment dated 27.01.2009 (Suit No.257/2007) passed by the Claims Tribunal whereby while holding that the Appellants were entitled to a compensation of `4,20,000/-, 5% of the compensation was deducted towards contributory negligence and on the basis of the judgment of this Court in United India Insurance Co. Ltd. v. Reeta Devi & Ors, MAC. APP No.492/2009 Page 1 of 5 decided on 04.11.2008, the compensation was ordered to be paid to the Appellants @ `2000/- per month.

2. The decision in United India Insurance Co. Ltd. v. Reeta Devi & Ors was set aside by the Supreme Court in SLP No.15796/2009 decided on 22.02.2010 where it was held that the payment of compensation by way of monthly installments should not be provided. The Supreme Court directed that the lump sum compensation should be allowed to be paid to the Claimants.

3. The contentions raised on behalf of the Appellants are:

(i) The deceased was engaged in the business of preparing and selling Dona Pattal; although his income was claimed to be `4,000/- per month, the Claims Tribunal took the minimum wages of an unskilled worker. It is urged that even if the deceased's income was not accepted, the minimum wages of a skilled worker should have been taken into consideration.

(ii) On the basis of the judgment in General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas(Mrs.) and Ors, (1994) 2 SCC 176 and Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179, 50% addition should have been made towards future prospects.

4. Although, Anita Devi's testimony that her deceased husband was engaged in the business of making Dona Pattal was not challenged in the cross-examination, the factum of the income of `4,000/- was very much disputed and challenged. The Appellant Anita Devi might not be in a position to produce any documentary with regard to the deceased's income, but she could have given details as to how the deceased was able to make an earning of `4,000/- per month. In this view of the matter, the deceased's income of `4,000/- was rightly not accepted by the Claims Tribunal. But, at the same time, a person making Dona Pattal may not be a skilled worker, but he would definitely be a semi-skilled worker. Therefore, his assumed income as `2894/-(rounded off to `3,000/- per month), should have been taken as `3060/- per month.

5. No evidence was led with regard to the deceased's future prospects. In Sarla Dixit (supra), there was evidence with regard to the deceased's future prospects. In the absence of any evidence, no addition could have been made on account of future prospects. In view of the above discussion, the loss of dependency comes to `3,67,200/- (`3060/- X 12 X 2/3 X 15).

6. The Claims Tribunal awarded a sum of `50,000/- towards loss of love and affection. In the absence of any Appeal by the Respondent Insurance Company, I would not interfere with the same. Thus, the compensation of `50,000/- is taken towards loss of love and affection and Loss of consortium.

Compensation of `5,000/- each towards funeral expenses and loss to estate are retained as awarded by the Claims Tribunal.

7. The overall compensation is thus increased from `4,20,000/- to `4,27,000/-.

8. The Claims Tribunal held contributory negligence on the part of the deceased as there were nine occupants in the maruti van as against its sitting capacity of eight. It was proved on record that there were two children travelling in the maruti van in addition to seven adults. Otherwise also, the testimony of Anita Devi and of other witnesses that the offending tanker bearing No.UP- 78N-3700 was being driven at a very high speed and in a rash and negligent manner and had hit the maruti van was not challenged in the cross-examination. This testimony is further supported from the fact that a criminal case bearing FIR No.210/2004 was registered in P.S. Jaithra against the driver of the tanker for causing accident by his rash and negligent driving. The Claims Tribunal erred in making a deduction of 5% on account of contributory negligence on the part of the deceased.

9. The enhanced amount of compensation shall carry interest @ 7.5% per annum. The Respondent Insurance Company is directed to deposit the amount along with interest in the name of the Appellants with the UCO Bank, Delhi High Court Branch within six weeks.

10. 50% of the compensation shall be payable to the Appellant No.1 Anita Devi, 30% to Appellant No.2 Dolly (minor) and 20% to MAC. APP No.492/2009 Page 4 of 5 Appellant No.3 Mahavir Singh (the deceased's father). The compensation awarded to the Appellant No.2 shall be held in Fixed Deposit till she attains the age of 21 years. 50% of the compensation awarded to the Appellant No.1 shall be held in Fixed Deposit for a period of three years. Rest of the compensation shall be released to her immediately. Mahavir Singh (the Respondent No.3) is an aged person. This accident took place eight years back. The compensation awarded to him shall be released to him forthwith.

11. The Appeal is allowed in above terms.

(G.P. MITTAL) JUDGE MAY 02, 2012 pst MAC. APP No.492/2009 Page 5 of 5