Icici Lombard General Insurance ... vs Smt. Archana Sinha & Others
2011 Latest Caselaw 4565 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 16.09.2011


+                   MAC Appeal No 552/2010


ICICI LOMBARD GENERAL INSURANCE CO. LTD.
                                      .....Appellant
                  Through: Ms. Suman Bagga, Advocate.

                   Versus


SMT. ARCHANA SINHA & OTHERS
                                                 ..........Respondents
                        Through:     None

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?              Yes

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

INDERMEET KAUR, J. (Oral)

1 This appeal has impugned the Award dated 29.05.2010 vide

which a total compensation of Rs.40,66,550/- along with interest

@ 7.5% per annum had been awarded in favour of the claimants.

2 Record shows that the deceased Taposh Kumar on

04.03.2007 while driving his scooter was hit by a motor-cycle as a

result of which he had suffered grievous injuries, he succumbed to

the same on 07.03.2007 i.e. three days later.

3 After oral and documentary evidence was led, the

aforenoted amount was awarded in favour of the claimants of the

victim which included his parents, widow and two minor children.

4 This appeal has been filed by the Insurance Company; it has

been assailed firstly on the quantum; contention is that the

amount of Rs.40,66,550/- is very much on the higher side; in fact it

has enured as a bonanza; attention has been drawn to the

testimony of PW-5 & PW-6; it is pointed out that PW-6 was

allegedly the witness where the deceased was working yet inspite

of specific opportunities having been granted to him to produce

the relevant record of the company, he had failed to do so; the

Tribunal by placing reliance upon the appointment letter Ex.PW-

1/21 and ignoring the income tax returns of the deceased which

were of the year 2007-2008 i.e. Ex. PW-1/23 and Ex. PW-1/24 has

committed an illegality; submission being that had these

documents Ex. PW-1/23 & Ex. PW-1/24 been taken into account,

the income of the deceased would have been assessed at

Rs.9,000/- per month but relying upon Ex. PW-1/21 (which was not

properly proved), his income of Rs.29,176/- has been taken into

account. The future prospects have illegally been considered; the

petitioner was working in the company only since the last two

months.

5 The second argument propounded by the learned counsel

for the appellant is that this is a case a of head on collusion; PW-4

was the alleged eye witness yet in his cross-examination he has

admitted that the site plan was not prepared at his instance; if the

site plan was not prepared at his instance, it is clear that the

Investigating Officer has made a guess work; the driver of the

offending vehicle has been examined as PW-4 whose deposition in

fact shows that this was a case of head on collusion; the aspect of

contributory negligence has not been taken into account by the

Tribunal. On both counts, the Award is liable to be set aside.

6 None has appeared for the respondents although they have

been served.

7 The second question shall be answered first. The Tribunal

has noted that PW-4 is the eye witness; he was strolling outside

his jhuggi on the fateful day when he witnessed this accident; the

victim was driving vehicle No. 2385 when he was hit by the

offending vehicle; PW-4 has on oath deposed that the motorcyclist

of the offending vehicle was driving the offending vehicle at a very

high speed and was coming from the wrong side and because of

this, the accident had occurred. In his cross-examination he has

stated that he had notified the PCR and his name also appeared in

the PCR form which information was given at the same time i.e. at

10:30 PM which was the time of the accident. This evidence thus

shows that PW-4 in fact had witnessed the accident and that is

how his name had appeared in the PCR which was the first

information report of the accident. PW-4 in his cross-examination

has further explained that the Police had in detail asked him about

the accident which explanation he had given and told then the

manner in which the accident had taken place; in this scenario his

submission that the site plan was not prepared at his instance has

little relevance; it also cannot be lost site of the fact that this

witness was a jhuggi dweller; he was an illiterate person; probably

he did not know what a site plan is; yet his version is clear and

categorical to the effect that he had seen the accident in the

manner in which it had taken place pursuant to which the site

plan was prepared. PW-4 had further stated that the speed of the

said vehicle i.e. 2385 (which was being driven by the deceased)

was comparatively slow; this testimony was thus rightly relied

upon by the Tribunal; site plan has also been perused; point 'A'

reflects the site of the accident showing that the motorcyclist i.e.

offending vehicle was coming from the wrong site. The testimony

of R3W1 is also relevant; he was the driver of the offending

vehicle; he has also stated that there were ditches on the road and

in order to save himself, the motorcyclist (driven by the deceased)

hit a stone and to prevent himself from falling into the ditch, the

vehicle of the deceased hit against a stationary tempo. Testimony

of this witness along with the testimony of the eye witness clearly

shows that there was no negligence on the part of the deceased

and this is rightly appreciated by the Tribunal; there were ditches

and gaddas there and in order to save himself from the said

ditches as also the fact that the offending vehicle was coming

from the wrong side, the accident had occurred. Finding of this

score calls for no interference.

8 Quantum of Rs.40,66,550/- awarded to the claimants of the

victim also does not suffer from any infirmity. PW-6 Narender

Pratap Singh was authorized to depose on behalf of the Company

i.e. M/s Cull Next Solution Ltd. where the deceased was working

since the last two months i.e. two months prior to the date of the

accident; Ex. PW-1/21 was the appointment letter which had been

issued to him by the company; his total salary was Rs.29,176/-;

carry home salary being Rs.27,900/- which was the figure taken

into account by the Tribunal. The Tribunal has in fact also made a

deduction of 15% from this carry home salary of Rs.27,900/- for

the purpose of tax; there is no reason as to why the future

prospects of the victim should not have been considered; they

were rightly considered. The educational qualification and the fact

that the victim was a micro-software expert was taken into

account; victim had obtained an advance diploma in Computer

Application from the IGNOU and had been awarded a certificate

of excellence as a micro-software certified professional; the said

documents had been proved as Ex. PW-1/3 & Ex. PW-1/4. PW-5

was the earlier employer of the victim; PW-5 had deposed that the

monthly salary of the victim in May, 2005 was about Rs.15,000/-

per month; obviously he left the services of PW-5 to join the

company where PW-6 was working only for a better and enhanced

future prospects; his carry home salary of Rs.27,900/- was noted

in Ex. PW-1/21. Ex. PW-6/B and Ex.PW-6/G were the personal data

record of the victim and evidenced the fact that he was drawing

the aforenoted amount as a carry home salary.

9 Strict rules of evidence are not applicable to proceeding

before the Tribunal; as such the submission of learned counsel for

the appellant that Ex. PW-1/21 has not been proved as per rules of

evidence has little meaning; the whole purpose of this legislation

is that a just and fair compensation should be awarded to the

victim of a grieved person who has left his near and dear ones in

the lurch by an unfortunate and unprecedented accident and as

such compensation paid to the legal representatives of such a

victim as early as possible would be given a go-bye if the

claimants of the said victim are asked to engage a lawyer on high

cost and to follow the strict procedural laws. Even otherwise, the

proof of Ex. PW-1/21 and Ex. PW-6/E to Ex. PW-6/G (Colly.) suffers

from no infirmity. These documents were noted in the testimony of

PW-6 and Ex. PW-1/21 was the salary certificate of the victim

which was further substantiated by documents PW-6/E to Ex. PW-

6/G (Colly.).

10 The sum of Rs.40,31,550/- had thus been awarded under the

'loss of dependency'; victim being only 29 years on the date of the

accident; the amount awarded under the non-pecuniary damages

is not the subject matter of challenge before this Court. Impugned

Award in no manner suffers from any infirmity. Appeal is without

any merit.

11    Dismissed.



                                         INDERMEET KAUR, J.
SEPTEMBER 16, 2011
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