Delhi High Court
M/S.The New India Assurance ... vs Sakila & Ors. on 21 November, 2008
Author: V.B.Gupta
* HIGH COURT OF DELHI : NEW DELHI
MAC App. No.488 of 2008
% Judgment reserved on:18th November, 2008
Judgment delivered on:21st November, 2008
M/s. The New India Assurance Co. Ltd.
A2/3 Lusa Tower, Azad Pur,
Delhi ....Appellants
Through: Mr. D.D. Singh, Adv.
Versus
1. Sakila
W/o. Late Sh. Mohd. Mosim
2. Kamre Alam
S/o. Late Sh. Mohd. Mosim
3. Samser Alam (minor)
S/o. Late Sh. Mohd. Mosim
4. Gulam Khatoon (minor)
D/o. Late Sh. Mohd. Mosim
5. Roshan Khatoon (minor)
D/o. Late Sh. Mohd. Mosim
6. Sabnan Khatoon (minor)
D/o. Late Sh. Mohd. Mosim
7. Danish Alam (minor)
S/o. Late Sh. Mohd. Mosim
8. Sahana Parveen (minor)
D/o. Late Sh. Mohd. Mosim
MAC App.No.488 of 2008 Page 1 of 10
9. Sh. Habibul Rehman
S/o. Late Mohd. Subejan
(petitioner no.3 to 8 are minors through
their mother and natural guardian petitioner
No.1)
All R/o.
Y-235, Gali No.5,
Prem Nagar-II, Kirari,
Delhi
10. Sh. Ram Deen (driver)
S/o. Sh. Bhagga,
R/o. Cabin No.23, Broad gage line,
Cement siding, Shakur Basti, New Delhi
11. Sh. Bal Govind
S/o. Sh. Hira Lal
R/o. Cabin No.23, Broad gage line,
Cement siding, Shakur Basti, New Delhi
...Respondents.
Through: Nemo.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
V.B.Gupta, J.
New India Assurance Company has filed this
appeal under Section 173 of Motor Vehicles Act, 1988
(for short as 'Act') against award dated 8th July, 2008
passed by Ms. Neena Bansal Krishna, Judge MACT (for
short as 'Tribunal'), Delhi.
2. Brief facts of this case are that on 4th Otober,
2001, at about 5.15 p.m. deceased (Mohd. Mosim) was
going on his cycle and had reached near Sabzi Mandi,
Rani Bagh, Delhi, when a truck bearing No.DIG 2790,
which was being driven at a high speed and in a rash
and negligent manner by respondent No.10 came from
the side of Nilamber Appatments, Sainik Vihar and hit
the cycle of the deceased, due to which deceased
sustained fatal injuries. The truck is owned by
respondent No.11 and is insured with the appellant.
3. Respondent No.10/Driver did not appear despite
service before the Tribunal and was proceeded ex-
parte on 17th April, 2002.
4. The owner of the offending vehicle also did not
appear before the Tribunal despite service and he was
also proceeded ex-parte on 23rd October, 2002.
5. The appellant in its written statement took
preliminary objections stating that it is not liable to
pay compensation if it is found that the driver of the
vehicle was not holding a valid and effective driving
licence at the time of the alleged accident or the
owner/insurer had violated any terms and conditions of
the policy.
6. On merits, the appellant has admitted the factum
of insurance.
7. The claimants had originally filed their claim
petition under Section 166 and 140 of the Act and an
interim award in a sum of Rs.50,000/- has already been
awarded in their favour.
8. At the time of the final arguments, vide order
dated 29th November, 2006, passed by the Tribunal,
the claimants were allowed to get their petition
converted into claim petition under Section 163-A of
the Act.
9. Vide impugned judgment, the Tribunal awarded a
compensation of Rs.4,57,500/- along with interest @
7.5% p.a. from the date of filing of the petition till the
date of payment.
10. Being aggrieved with the impugned judgment
passed by the Tribunal, the Insurance Company has
filed the present appeal.
11. It has been contended by the learned counsel for
appellant that as per the facts stated in the petition,
the income of the deceased was Rs.4,500/- per month
and only those person are entitled to compensation
under section 163A of the Act, whose income is not
more than Rs.40,000/- per annum. Thus, the Tribunal
has erred by awarding compensation under section
163A of the Act, as the income of the deceased as
assessed by the Tribunal was more than Rs.40,000/-
per annum.
12. Furthermore, the Tribunal has committed grave
error by holding that as the appellant has not
challenged the conversion of the petition as such the
same could not be reagitated. Since the respondents
no. 1 to 9 had already reaped the benefits by getting
the interim award passed in their favour under section
140 of the Act, as such the order of converting the
petition into the petition under section 163A of the Act
was bad in eyes of law.
13. Other contention is that there was no eye witness
examined by respondents no. 1 to 9 to prove that the
accident has taken place due to rash and negligent act
of the respondent no.10 i.e. driver of the offending
vehicle. In case of the petition under section 166 of the
Act, the claimants are required to prove the rash and
negligent aspect of the offending vehicle by leading
cogent evidence. In the present case, no evidence was
led by the claimants and thus, the Tribunal has erred
in holding that the accident has taken place due to
rash and negligent act of the respondent no.10 in view
of the criminal record as placed on record.
14. Learned counsel for the appellant has relied upon
the decision of the Apex Court in Oriental Insurance
Co. Ltd. v. Hansarajbhai V. Kodala and others,
2001 SCC (Cri) 857 and the decision of this Court in
Delhi Transport Corporation & Anr. v. Nirmala &
Ors., I (2003) ACC 389, in support of its contentions.
15. Respondent no.1/Sakila, widow of the deceased as
PW1 has deposed that the deceased was aged about 35
years old at the time of his death and was earning
Rs.4,500/- per month.
16. On the other hand, Kamre Alam, son of the
deceased as PW2 has deposed that the deceased was
earning Rs.3,000/- per month.
17. However, the claimants have not placed any
documentary proof with regard to the income of the
deceased.
18. Under Second Schedule of the Act, the upper limit
of the income is Rs.40,000/- per annum.
19. Since no proof with regard to the income of the
deceased has been placed on record, the Tribunal thus
took the safest course and adopted the minimum
wages. The minimum wages has been taken as
Rs.2,600/- per month for unskilled worker relevant at
the time of accident and considering the future
prospects which are inherent and taking into account
the method as laid down in Sarla Dixit v. Balwant
Yadav, AIR 1996 SC 1274, the income of the
deceased was doubled and average of the same was
taken and 1/3rd was deducted and thus monthly income
was taken as Rs.2,600/-. The loss of income to the
family of deceased thus comes to Rs.31,200/-, which in
any case, comes within the prescribed limits, as laid
down in the Second Schedule of the Act.
20. It is evident from the record that initially this
petition was filed under Section 166 read with Section
140 of the Act and thereafter the claimants got
converted their petition into under Section 163A of the
Act. The claim petition was converted into section
163A of the Act vide order dated 29.11.2006. However,
the appellant did not challenge this conversion order
and therefore, appellant cannot agitate this point at
this stage.
21. As regards to the contention of proving rash and
negligent driving, in the present case, since the
petition has been decided by the Tribunal under
section 163A of the Act, the claimants need not prove
that the death of the deceased was caused due to any
wrongful act or neglect or default of the owner of the
vehicle or of any other person. The claimants have only
to prove that deceased died in the accident on account
of involvement of offending truck. Thus, this contention
of the appellant is also rejected.
22. For detailed reasons recorded in MAC App.
No.368 of 2005, Uttar Pradesh State Road
Transport Corporation v. Gajraj Singh and Ors.,
decided on 26th August, 2008 and MAC App.
No.439/2008 & CM No.11233/2008, The New
India Assurance Co. Ltd. v. Sh. Mohd. Jabir and
Ors., decided on 23rd September, 2008 by this Court,
the present appeal is not maintainable and the same is,
hereby, dismissed.
23. No order as to costs.
November 21, 2008 V.B.GUPTA, J.
rs/Bisht
