Delhi High Court
Bajaj Allianz General Insurance ... vs Sh.Sri Niwas Sharma & Ors. on 15 July, 2011
Author: Indermeet Kaur
A-16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 15.7.2011
MAC APPEAL No.695/2010
BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD.
......Petitioner
Through: Ms.Suman Bagga, Advocate.
Versus
SH.SRI NIWAS SHARMA & ORS.
Through: Mr.Arun Srivastava for
respondent no.1.
Ms.Suman Malhotra, Advocate
for respondent no.2.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
INDERMEET KAUR, J.
1. This appeal has impugned the Award dated 31.7.2010
whereby compensation in the sum of Rs.5,34,281/- had been
awarded in favour of the claimants. The claimants were three in
number i.e. the widower husband of the deceased and the two
married sons of the deceased.
2. Facts as emanating from the record are that the petitioner
on 25.1.2008 at 9.00 PM while crossing the outer ring road
opposite Reliance Fresh, Meera Bagh, Paschim Vihar, New Delhi
met with an accident; the offending vehicle was being driven by
respondent no.1 in a high speed, rashly and negligently.
Deceased sustained injuries pursuant to which she died.
3. Oral and documentary evidence was led. Issue No.1 reads
as follows:
1.Whether the deceased Smt.Mithlesh had sustained fatal injuries
on 25.1.2008 at about 9 p.m. on outer ring road, opposite Reliance
Fresh, Meera Bagh, Paschim Vihar, Delhi due to rash and
negligent driving of respondent No.1 Sh. Pankaj @ Pankaj Jaggi
while driving Wagon-R Car bearing registration no.DL-9C-N2313?
4. PW-2 was an eye witness to the incident. He had stated that
on the fateful day he saw a lady crossing the road when suddenly
a Wagon-R came from behind at high speed being driven at high
speed, rashly and negligently overtook his motor cycle and hit that
lady due to which she sustained injuries. Cross-examination of
PW-2 shows that nowhere has it been suggested that this witness
is deposing falsely for any ulterior purpose; cross-examination of
the aforenoted witness PW-2 shows that there is no reason as to
why he would have deposed but for the fact that he had actually
seen the incident.
5. Learned counsel for the petitioner has vehemently argued
that there was contributory negligence on the part of the victim.
Attention has been drawn to the site plan to substantiate this
submission. The accident had occurred at point B; lady was
crossing the road at point A. However this argument as submitted
by the learned counsel for the appellant is not borne out in view of
the fact that there is a clear and coherent version of the
independent witness; it was because of the rashness and negligent
act of the driver of the offending vehicle due to which the victim
had sustained injuries and she succumbed to them. Applicability
of doctrine of contributory negligence is negatived.
6. The other argument urged by the learned counsel for the
appellant/insurance company is that the claimants are three in
number of whom claimant no.1 is alone entitled to compensation;
the other two claimants are not dependents being aged 35 and 33
years respectively. This submission of the learned counsel for the
appellant is borne out from the record. It has also not been
disputed by the learned counsel for the respondents that both the
sons are married and were not financially dependent upon the
deceased. A vague submission has been made by the learned
counsel for the respondent that they were emotionally dependant
upon their mother; however this is not supported by any evidence
on record; there is also not a whisper of the same either in the
pleadings or in the evidence.
7. The deceased was a housewife on the date of the accident;
her notional income of Rs.3000/- has been taken into account and
taking judicial notice of the fact that the minimum wages tend to
increase 100% every ten years by relying upon Lata Wadhwa &
Ors. Vs. State of Bihar reported in (2001) ACC 316 (Supreme
Court), the income of the deceased had thus been calculated at
Rs.6000/- per month. Admittedly no deduction has been made
from this income. In view of the ratio of the judgment of Sarla
Verma & Ors. Vs. Delhi Transport Corporation & Anr. reported in
III (2009) ACC 708 (Supreme Court) 1/3rd amount was liable to
be deducted from Rs.6000/-; the income of Rs.6000/- would thus
become Rs.4000/- . Applying the multiplier of 7 to the aforenoted
income of Rs.4000/- per month the total compensation awarded
under the head of "loss of dependency" would be Rs.3,36,000/-.
8. The amount awarded under the non-pecuniary heads has not
been challenged.
9. The modified award would accordingly be in the sum of
Rs.3,66,281/- after deducting the sum of Rs.50,000/- which was
the interim compensation already paid. No other modification is
called for.
10. Appeal is disposed of in the above terms.
(INDERMEET KAUR)
JUDGE
JULY 15, 2011
nandan
