New India Assurance Co. Ltd. vs Kala Wati And Ors.
1995 Latest Caselaw 483 Del

JUDGMENT

C.M. Nayar, J.

(1) The present appeal has been filed to impugn the award dated 7th March, 1980 passed by Shri H.P. Bagchi, Judge Motor Accident Claims Tribunal, Delhi. The brief facts of the case are that the respondent/claimants who are the legal heirs of deceased Kanwar Pal Gin filed a petition under Section 110-A of the Motor Vehicles Act against the appellant-Company as well as against the other respondents who were responsible for the accident which took place on 26th August, 1975 near the crossing of Boulevard Road, near Police Lines and Tis Hazari Courts. The accident took place at 9.35 p.m. on account of the rash and negligent driving of Car no. DLV7372 driven by respondent No. 8 and Taxi No Dlt 1899 driven by respondent 11. The first vehicle was insured with Oriental Fire and General Insurance Co. Ltd, respondent No. 10 and the second vehicle was insured with the appellant Insurance Company. It is alleged that on the day and time of the accident the deceased Kanwal Pal Giri was standing along with his friend Sh. Kedar Nath on the footpath on the comer of the electric crossing leading from the road coming from Police Lines as well as the road coming from Inter State Bus Terminal towards Subzimandi. They were talking to each other when the offending car bearing No. Dlv 7372 was coming from Mori Gate towards the road on the police lines at a terrific speed and the offending taxi was coming on Bouleverd Road from Subzimandi towards ISBT. It is further reiterated that the drivers of both the vehicles were negligent and careless and were driving rashly. The vehicles collided with each other and as a result of the accident the deceased was crushed to death by the vehicles though he was standing on the footpath and had in no way come on the road. Shri Kedar Nath too received serious injuries and was hospitalised. The petition was contested by the appellant and other respondents except respondent No. 11, Raj Kumar and he was proceeded ex-parte vide order dated 23rd February, 1977. The appellant and the respondents took the plea that the alleged accident was caused as a result of the rash and negligent driving of taxi driver on the part of respondent No.11. The following issues were framed on the pleadings of the parties:

1. Whether the accident was caused due to rash and negligent driving of car No. Dlv 7372 and Taxi No. Dlt 1899 on the part of both the drivers? 2. Whether the accident was caused due to rash and negligent driving of respondent No. 1, driver of the car. If so, to what effect? 3. Whether the accident was caused due to rash and negligent driving of taxi driver? 4. Whether the deceased Kanwar Pal sustained injuries in the accident in question? 5. Whether the petitioners are the LRs of the deceased? 6. To what amount of compensation, are the petitioners entitled and from whom? 7. Relief

The Tribunal assessed the evidence on record and came to the finding that the accident took place due to rash and negligent driving of taxi No. Dlt 1899 on the part of respondent No.11 and no rashness and negligence could be attributed to the driving of respondent No. 8.

(2) The quantum of compensation was then assessed at Rs. 87,360.00. Further deduction was made for Rs. 25,752.00 on account of pension amounts payable and 10% on payment of gratuity of Rs. 2900.00 as acceleration of pecuniary gain on that amount. The total award of compensation, therefore, which was allowed was only to the extent of Rs. 52,121.00 which was held to be just and reasonable amount of compensation payable to the respondent claimants 1 to 7. The Tribunal awarded interest @ 6% p.a. on the amount from the date of the petition till realisation and the liability of the appellant-Company was held limited to the extent of Rs. 50,000 .00 with interest and costs.

(3) The present appeal has been filed by the appellant-insurance Company and the learned Counsel has only contended that he is aggrieved by the award to the extent that the amount should have been apportioned between the two offending vehicles which were insured with the appellant Insurance Company and the Oriental Fire and General Insurance Company. He has rightly made no challenge to the quantum as the learned Judge has already awarded the minimum amount which was held payable to the claimants. The respondents have not filed any cross appeal or cross objections and it is contended by learned Counsel now appearing for them that they had no means to challenge the award and ask for enhancement. In this situation it would have been equally proper and fair if the appellant Insurance Company had satisfied the award and the present proceedings seem to be quite unnecessary as the amount awarded is very much on the lower side. The learned Counsel for the respondents has further stated that the only amount which has been deposited by the Insurance Company is Rs. 43,500.00 on 15th October, 1981 which was disbursed to the claimants on 11th February, 1986 as they could not furnish any security for release of the amount. She has further argued that the interest awarded is only @ 6% p.a. and the same should have been awarded at a higher rate. The learned Counsel has asked for enhancement particularly in view of the long delay which has taken place as the accident took place as far back as 26th August, 1975.

(4) The Tribunal has assessed the evidence on record and in view of the facts stated above I am not inclined to interfere with the quantum of compensation as awarded. The plea of negligence which has now been raised before me is without any basis. The finding in this regard does not require any interference. The same is affirmed. The Insurance Company should be well advised not to pursue litigation in such matters where death has occurred in the accidents and the compensation awarded is rather on the lower side. They should opt out to settle the matter outside the Court instead of pursuing the remedy as provided in law to the last Court. The present case presents pathetic facts. The accident took place on 26th August, 1975. The deceased was standing on the footpath and he was crushed to death by the offending vehicle. He left behind his widow, five minor children and aged mother. He was only 33 years of age and was employed in a Government job. Taking an overall view of the facts and circumstances of the present case I feel that the interest of justice will only be satisfied if the appellant Insurance Company is directed to pay the amount as awarded along with the enhanced rate of interest. The appellant shall, therefore, pay interest @ 15% p.a. to the respondent/claimants from the date of the petition till realisation of the amount. The amount which has already been disbursed to the claimants shall be taken into consideration while working out the amount now held payable. The present appeal is dismissed with costs which are quantified at Rs. 5,000.00.