New India Assurance Co. Ltd. vs Ganga Devi & Ors.
2009 Latest Caselaw 4763 Del

45 & 46
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of decision: 23rd November, 2009


                      +      MAC.APP.No.135/2008

      NEW INDIA ASSURANCE CO. LTD.       ..... Appellant
                    Through : Mr. Pankaj Seth, Adv.

                    versus

      GANGA DEVI & ORS.                  ..... Respondents
                    Through : Mr. Navneet Goyal, Adv.
                              for R-1 and 2.

                        +         MAC.APP. 359/2008

      GANGA DEVI & ORS.                      ..... Appellants
                    Through : Mr. Navneet Goyal, Adv.

                    versus

      NEW INDIA ASSURANCE CO.LTD. &ORS. ..... Respondents
                    Through : Mr. Pankaj Seth, Adv.

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. New India Assurance Co. Ltd. (hereinafter referred to as

'Insurance Company') and Smt. Ganga Devi and Radhey Lal

Meena (hereinafter referred to as 'claimants') have challenged

the award of the learned Tribunal whereby compensation of

Rs.9,60,352/- has been awarded to the claimants.

2. MAC.APP.No.135/2008 is the appeal by the Insurance

Company whereas MAC.APP.No.359/2008 is the appeal by the

claimants.

MAC.APP.No.135/2008

1. The accident dated 12th August, 2003 resulted in the death

of Dr. Brij Mohan. The deceased was survived by his parents who

filed the claim petition before the learned Tribunal.

2. The deceased was driving motocycle bearing No.DL-3S-AE-

2673 while going from Mehrauli side to Safdarjung Hospital.

When the deceased reached Aurobindo Market near Yusuf Sarai

Market, he was hit by blueline bus bearing No.DL-1PB-5261 due

to which the deceased fell down and suffered fatal injuries. The

driver of the bus parked the bus at the nearby bus stand and ran

away from the spot.

3. The deceased was 24 years old at the time of the accident.

The deceased had completed his MBBS and was doing one year

internship with Guru Teg Bahadur Medical College, Shahadara

and was getting stipend of Rs.5,000/- per month. The deceased

had also cleared the UPSC examination for the post of medical

officer and was scheduled to be appointed as medical officer after

completing the internship.

4. The claimants produced four witnesses before the learned

Tribunal. PW-1 - Head Constable, Atar Singh produced the record

of FIR No.383/03 dated 12th August, 2003 and proved the copy of

the FIR as Ex.PW1/A.

5. PW-2 - J.P. Rathi, Senior Assistant, University College of

Medical Science, GTB Hospital proved that the deceased took

admission in MBBS course in 1997. The witness produced the

complete record of the deceased which was proved as Ex.PW2/A.

PW-2 further deposed that the deceased was doing internship at

the time of the accident after completing 4½ years course. PW-2

further deposed that after completing MBBS course, preference is

given to internal candidates for being absorbed as Junior Resident

Doctors at a salary of Rs.18,000/- to Rs.20,000/- per month. The

deceased was getting a stipend of Rs.5,000/- per month at the

time of the accident.

6. The father of the deceased appeared as PW-3 and deposed

about the educational and professional qualifications of the

deceased. PW-3 also tendered the certified copies of the

chargesheet, FIR, site plan, recovery memo, application for

mechanical inspection and inspection reports of the bus as well

as motorcycle, registration certificate of the bus and post-mortem

report as Ex.P2 to Ex.P11. The copies of the degrees, marksheets

and certificates in respect of educational and professional

qualifications were proved as P-12 to P-19.

7. Bhagwat Singh Verma, eye-witness of the accident

appeared as PW-4 and deposed that the deceased was riding on

his motorcycle while going from Mehrauli to Safdarjung when the

offending bus hit the motorcycle of the deceased from left side

due to which the motorcyclist fell down on the road. PW-4 further

deposed that the bus driver parked the bus on the nearby bus

stand and ran away from there. The deceased was wearing

helmet at the time of the accident and he became unconscious.

PW-4 put the deceased in the TSR with the help of passerby and

sent him to the hospital. PW-4 was called by the police where his

statement was recorded. In cross-examination, PW-4 deposed

that he saw the accident from a distance of about 20 to 25 paces

and at that time, the motorcycle was at a speed of 30 to 35

kms/hr. whereas the bus was at a speed of about 50 kms/hr.

PW-4 further stated that the accident did not occur due to the

fault of the motorcycle.

8. The only ground urged by the Insurance Company at the

time of hearing of this appeal is that the negligence of the driver

of the offending bus has not been proved before the learned

Tribunal.

9. There is sufficient evidence on record to prove the rash and

negligence of the driver of the offending bus. From the

statement of the eye-witness - PW-4 and the site plan - Ex.P-4, it

has been established that the motorcyclist was driving at a speed

of 30 to 35 kms/hr. and the bus came from behind at the speed of

50 kms/hr. and hit the deceased from behind. The FIR - Ex.P-3

has been registered against the driver of the bus and after

investigation, the police chargesheeted the driver vide

chargesheet - Ex.P-2. Though the learned Tribunal has given the

finding of rash and negligence of driver but the learned Tribunal

has not rightly appreciated the evidence on record which as

stated above, is sufficient to arrive at the finding of rash and

negligence of the driver of the offending bus.

10. There is no merit in the contention of learned counsel for

the Insurance Company that the rash and negligence of the

driver of the bus has not been sufficiently proved. Though the

Insurance Company has not taken over the defence of the driver

and owner of the offending vehicle under Section 170 of the

Motor Vehicles Act and is not entitled to contest the case on

merits, notwithstanding the bar of Section 170, the contention of

the Insurance Company has been examined on merits.

11. For all the aforesaid reasons, MAC.APP.No.135/2008 is

dismissed.

MAC.APP.No.359/2008

1. The claimants have filed MAC.APP.No.359/2008 for

enhancement of the compensation.

2. The deceased was aged 24 years at the time of the accident

and was getting the stipend of Rs.5,000/- per month and was

supposed to join the Hospital at a salary of Rs.18,000 to

Rs.20,000/- per month. However, the learned Tribunal held the

evidence to insufficient to prove the income and took the

minimum wages of a graduate worker as Rs.3,543/- per month,

added 50% towards inflation and rise in price index, deducted

1/3rd towards personal expenses and applied the multiplier of 11

to compute the loss of dependency at Rs.9,35,352/-. Rs.15,000/-

has been awarded towards loss of consortium and Rs.10,000/-

towards funeral expenses. The total compensation awarded is

Rs.9,60,352/-.

3. The learned counsel for the appellant has urged the

following grounds at the time of hearing of this appeal-

(i) The income of the deceased be taken to be

Rs.20,000/- per month.

(ii) The multiplier be enhanced from 11 to 13

considering the age of the mother of the deceased

to be 47 years.

(iii) The compensation be awarded for loss of love and

affection and loss of estate.

(iv) The interest be enhanced from 7% per annum to 7.5%

per annum.

4. The learned counsel for Insurance Company submits that

the deceased was unmarried and, therefore, the personal

expenses of the deceased be reduced from 1/3rd to 1/2. The

learned counsel for Insurance Company further submits that the

deceased was unmarried and, therefore, the compensation on

account of loss of consortium could not have been granted to the

claimants.

5. The income of the deceased has been sufficiently proved by

the evidence of PW-2 who deposed that the deceased was

getting a stipend of Rs.5,000/- per month and was supposed to

join as Junior Resident Doctor with the hospital at a salary of

Rs.18,000 to Rs.20,000/- per month. The complete record of the

deceased was exhibited by PW-2 as Ex.PW2/A. PW-3 also proved

the degrees, marksheet and certificates of the deceased as

Ex.PW-12 to Ex.PW-19 and deposed that the deceased was

getting a stipend of Rs.5,000/- per month and was scheduled to

join as a doctor at a salary of at least Rs.16,000/- per month

which was to be revised as Rs.25,000/- per month.

6. The finding of the learned Tribunal that the income of the

deceased has not been sufficiently proved, is not based on

evidence on record and is, therefore, set aside. The income of

the deceased at the time of the accident is taken to be

Rs.18,000/- per month. The deceased was aged 24 years and,

therefore, 50% is added towards future prospects of the

deceased following the judgment of Hon'ble Supreme Court in the

case of Sarla Verma Vs. Delhi Transport Corporation, 2009

(6) Scale 129. The deceased was unmarried and, therefore, the

deduction towards personal expenses is reduced from 1/3rd to

1/2. The parents of the deceased were aged 47 years and 50

years at the time of the accident. The appropriate multiplier

according to the age of the mother as per the judgment of the

Hon'ble Supreme Court in the case of Sarla Verma (supra) is 13.

The multiplier is, therefore, enhanced from 11 to 13.

7. The deceased was unmarried, therefore, no compensation

can be awarded for loss of consortium. The compensation of

Rs.10,000/- awarded by the learned Tribunal towards loss of

consortium is set aside. The learned Tribunal has not awarded

any compensation for loss of love and affection and loss of

estate. Rs.10,000/- is awarded towards loss of love and affection

and Rs.10,000/- towards loss of estate.

8. The learned Tribunal has awarded interest @7% per annum.

Following the judgment of the Hon'ble Supreme Court in the case

of Dharampal vs. U.P. State Road Transport Corporation,

III 2008 ACC (1) SC, the rate of interest is enhanced from 7%

per annum to 7.5% per annum.

9. Taking the income of the deceased to be Rs.18,000/- per

month, adding 50% towards future prospects, deducting 50%

towards personal expenses, applying the multiplier of 13, adding

Rs.10,000/- towards loss of love and affection, Rs.10,000/-

towards loss of estate and Rs.10,000/- towards funeral expenses,

the total compensation is computed to be Rs.21,36,000/-

[(Rs.18,000 + 50% of Rs.18,000) x 1/2 x 12 x 13)] + Rs.10,000 +

Rs.10,000 + Rs.10,000)].

10. The appeal is allowed and the award amount is enhanced

from Rs.9,60,352/- to Rs.21,36,000/- along with interest @7.5%

per annum from the date of filing of the petition till realization.

11. The enhanced award amount along with interest be

deposited by Insurance Company with UCO Bank A/c Ganga Devi

through Mr. M.M. Tandon, Member-Retail Team, UCO Bank Zonal,

Parliament Street, New Delhi (Mobile No. 09310356400) within 30

days.

12. The order with respect to disbursement of the award

amount shall be passed after examining the claimants who are

directed to remain present before this Court on 22nd December,

2009.

13. Copy of this order be given 'Dasti' to learned counsel for the

parties under the signature of Court Master.

J.R. MIDHA, J NOVEMBER 23, 2009/aj