Shri Vinod Kumar vs Ratanshanker Saxena & Others
2009 Latest Caselaw 3084 Del

10
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                         +      MAC.APP.11/2009

%                                   Date of decision: 10th August, 2009


      SHRI VINOD KUMAR             ..... Appellant
                    Through : Mr. Deepak Thukral, Adv.

                      versus

      RATANSHANKER SAXENA & OTHERS ..... Respondents
                  Through : Mr. K.L. Nandwani, Adv. for R-3.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?               YES

3.      Whether the judgment should be                       YES
        reported in the Digest?

                               JUDGMENT (Oral)

1. Notice could not be issued to respondents No.1 and 2 as the

appellant failed to file the process fee.

2. Noting that respondents No.1 and 2 are the claimants who

have received the compensation from respondent No.3, notice to

respondents No.1 and 2 is dispensed with and the matter is

finally heard.

3. The appellant has challenged the award of the learned

Tribunal whereby compensation of Rs.1,96,000/- has been

awarded against the appellant and respondent No.3. Respondent

No.3 has been given recovery rights to recover the amount from

the appellant after making the payment to the claimants.

Respondent No.3 has paid the entire award amount along with

interest to the claimants and has thereafter filed the execution to

recover the award amount from the appellant.

4. The appellant is the owner of the offending truck which

resulted in the death of Saroj Saxena on 2 nd February, 2007. The

deceased was survived by his husband and son who filed the

claim petition before the learned Tribunal.

5. The deceased was aged 60 years at the time of the accident

and was working as a tailor earning Rs.5,000/- per month.

However, in the absence of any documentary evidence to prove

the income, the learned Tribunal took the minimum wages of

Rs.3,900/- for a skilled worker and deducted 1/3rd towards the

personal expenses and applied the multiplier of 5 to compute the

loss of dependency at Rs.1,56,000/-. Rs.5,000/- has been

awarded towards loss of estate, Rs.5,000/- towards funeral

expenses, Rs.5,000/- towards transportation expenses of dead

body, Rs.10,000/- towards loss of consortium and Rs.15,000/-

towards loss of love and affection. The total compensation

awarded is Rs.1,96,000/-.

6. Respondent No.3 defended the claim petition before the

learned Tribunal on the ground that the driving licence of the

driver of the offending vehicle was fake. Respondent No.3

examined R3W1 who deposed that the licence of the driver was

investigated through an Investigator. The Investigator

approached District Transport Authority, Guwahati who certified

that the driving licence in question was not issued by their office.

The original certificate issued by District Transport Authority,

Guwahati to the Investigator is Ex.R3W1/4. The report of the

Investigator is Ex.R3W1/3. Respondent No.3 also issued notice to

the appellant under Order 12 Rule 8 of the Code of Civil

Procedure which is Ex.R3W1/1. The UPC and the postal receipt

on the said notice is Ex.R3W1/2

7. The appellant did not reply to the notice - Ex.R3W1/1. The

appellant also did not cross-examine R3W1 despite opportunity

granted. The appellant also did not lead any evidence to rebut

the evidence led by the appellant. No material has been placed

even before this Court to contend that the driver of the offending

vehicle was holding a valid driving licence. The finding of the

learned Tribunal that the driving licence of the driver of the

offending vehicle was fake is upheld.

8. The learned counsel for the appellant submits that there

was no evidence to prove the negligence of the driver of the

offending vehicle. The learned Tribunal has drawn presumption

of negligence from the FIR - Ex.P-6, post-mortem report -

Ex.PW2/A and endorsement issued by the police regarding the

handing over of the dead body of the deceased - Ex.P-4. The FIR

in question is recorded on the statement of ASI of the Police. The

LCR reveals that the Police furnished the attested copies of the

complete set of relevant documents before the Motor Accident

Claims Tribunal including the FIR registered by ASI, Yashpal

Singh, identification of the accused by ASI, Yashpal Singh, seizure

memo of the truck, Insurance policy, registration cover,

superdarinama, driving licence, site plan and post-mortem report.

The site plan clearly shows that the deceased was crossing the

Vikas Marg and was in the middle of the road when the offending

truck crushed her. The offending vehicle in question was taken

on superdari by the appellant himself. No evidence has been led

by the appellant or the driver of the offending vehicle. The driver

of the offending vehicle was prosecuted by the police and the

learned counsel for the appellant submits that the criminal case

is still pending. Despite that, the false statement on oath was

made in the written statement before the learned Tribunal

denying the accident and even registration of the FIR.

9. The learned counsel for the appellant submits that the

amount awarded by the learned Tribunal is exorbitant and be

reduced. The learned Tribunal has awarded the compensation

taking the minimum wages for the skilled worker considering that

no documentary evidence of the income was placed on record.

The learned Tribunal has applied the multiplier according to the

Second Schedule of the Motor Vehicles Act and the non-pecuniary

compensation is also just and fair. The amount awarded by the

learned Tribunal is just, fair and reasonable and does not call for

any interference.

10. The appeal is accordingly dismissed.

J.R. MIDHA, J

AUGUST 10, 2009 aj