Delhi High Court
Tata Aig General Insurance Co Ltd vs Ram Babu & Ors on 26 April, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 26th April, 2012
+ MAC.APP. 829/2010
TATA AIG GENERAL INSURANCE CO LTD ..... Appellant
Through Mr. K.L. Nandwani, Advocate
versus
RAM BABU & ORS ..... Respondent
Through Ms. Nikita Sharma, Advocate
for the Respondents No.1 & 2
+ MAC.APP. 254/2012
RAM BABU & ORS ..... Appellants
Through Ms. Nikita Sharma, Advocate
versus
TATA AIG GENERAL INSURANCE ..... Respondent
Through Mr. K.L. Nandwani, Advocate
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These Cross Appeals arise out of a judgment dated 01.09.2010
passed in Suit No.579/2010 whereby a compensation of
`5,42,334/- was awarded for the death of Rahul, a bachelor
aged 20 years in a motor accident which took place on
11.08.2007.
2. During inquiry before the Motor Accident Claims Tribunal (the
Claims Tribunal) it was claimed that the accident was caused on
account of rash and negligent driving of the offending vehicle
DL-3C-AD-4281 by Savita Verma (Respondent No.3 herein).
It was averred that the deceased was in a Private service and
was earning ` 5,000/- per month.
3. The Claims Tribunal held that the accident was caused on
account of rash and negligent driving of the offending car by
Respondent No.3. It further held that Respondents No.1 and 2
failed to established the deceased's salary to be `5,000/- per
month. It, therefore, took the help of Minimum Wages fixed
under the Minimum Wages Act by the Govt. of NCT of Delhi
and added 50% towards inflation to compute the loss of
dependency.
4. The following contentions are raised on behalf of the Appellant
Insurance Company:-
(i) It was not proved that the accident was caused on account
of rash and negligent driving of the car by Respondent
No.3.
(ii) 50% addition on account of inflation was not permissible
in view of the judgment of this Court in Dhaneshwari &
Another v. Tajeshwar Singh & Others, MAC. APP
997/2011 decided on 19.3.2012.
(iii) The compensation awarded towards Funeral Expenses
and towards Loss of Love & Affection is on the higher
side.
5. It is urged by the learned Counsel for the
Respondents/Claimants that the Respondents No.1 and 2 spent a
sum of `2,09,379/- towards the deceased's treatment in Fortis
Hospital, Vasant Kunj. The same, however, escaped the
attention of the Claims Tribunal.
6. On the issue of negligence, the Claims Tribunal observed as
under:-
"11. This is a petition under Section 166 of the Act
wherein the petitioner is under the duty to prove rashness
and negligence of the driver in causing the accident.
However, the rigid rules of evidence and procedure to
prove the culpability of the driver in causing the accident
beyond all shadow of doubt, as required in criminal
cases, is not required to be followed while deciding the
claim petition under the Act because the proceedings
under the Motor Vehicles Act is simply an enquiry and
not a trial as has been held in Kaushnumma Begum and
others v. New India Assurance Co. Ltd., 2001 ACJ 421
SC.
12. The Hon'ble High Court of Delhi in a case
titled as 2009 ACJ 287, National Insurance Company
Limited Vs. Pushpa Rana had held that where a
petitioner files the certified copy of the criminal record
showing completion of investigation, issuance of charge-
sheet, certified copy of the FIR, all these documents are a
sufficient proof to come to the conclusion that the driver
was negligent. In the present case, the petitioner has
placed on record the copy of post mortem report
Ex.PW1/3, copy of FIR, copy of charge-sheet, copy of site
plan, seizure memos, arrest memo, copy of mechanical
inspection report.
13. Therefore, it has been amply established that
the offending vehicle No.DL-3C-AD-4281 was very much
involved in the road accident which ultimately led to the
death of the deceased Rahul.
14. Accordingly, I am of the considered opinion
that the petitioner has succeeded in establishing that R-
1/driver was rash and negligent while driving the
offending vehicle on the day of accident which was
admittedly owned by herself and insured with R-2."
7. It is well settled that when the Claimants approach the Claims
Tribunal for the grant of compensation under Section 166 of the
Motor Vehicles Act, the Claimants are required to establish
negligence of the driver o7r the owner of the vehicle as grant of
compensation is based on fault liability. (Oriental Insurance
Company Limited v. Meena Variyal & Ors., (2007) 5 SCC 428).
8. At the same time, it has to be borne in mind that proof of
negligence in a Claim Petition under Section 166 of the Motor
Vehicles Act is different from the proof of negligence required
in a criminal case under Section 304-A of the Indian Penal
Code. For conviction of an accused under Section 304-A IPC,
the negligence must be proved beyond reasonable doubt. In a
Claim Petition, it is sufficient to prove negligence on the
touchstone of preponderance of probability. A reference may be
made to a latest decision of the Supreme Court in Kusum Lata
& Ors. v. Satbir & Ors., 2011 (3) SCC 646 where relying on
Bimla Devi and Ors. v. Himachal Road Transport Corporation
and Ors., (2009) 13 SC 530, the Supreme Court observed as
under:-
"....In a situation of this nature, the Tribunal has rightly
taken a holistic view of the matter. It was necessary to be
borne in mind that strict proof of an accident caused by a
particular bus in a particular manner may not be
possible to be done by the claimants. The claimants were
merely to establish their case on the touchstone of
preponderance of probability. The standard of proof
beyond reasonable doubt could not have been applied."
9. Respondents No.1 and 2 produced eye witness PW-2 Surjan
Kumar to prove the negligence. Unfortunately, the Claims
Tribunal preferred not to deal with the evidence of the eye
witness and instead held that registration of a criminal case was
sufficient proof of the negligence. As there can also be a
possibility of registration of a false case; thus simply on
account of registration of a criminal case an inference of
negligence on the part of driver or owner against whom a
Petition under Section 166 of the Act has been filed cannot be
drawn.
10. Turning to the facts of this case PW-2 Surjan Kumar testified
that on 11.08.2007 at about 12:30 P.M. he saw two boys going
on a motorcycle. When they reached at Aruna Asaf Ali Road
near Telephone Exchange one car bearing registration No. DL-
3C-AD-4281, which was driven by a lady, took a turn towards
the Telephone Exchange and hit the motorcycle.
11. The certified copy of the Site Plan prepared in FIR No.496/2007
was placed on record of the Claims Tribunal. The Site Plan
shows that the car entered the carriageway for the vehicles
coming from the opposite direction when this accident occurred.
Thus, evidence of the eye witness is supported by the Site Plan
prepared by the IO of the case. There is no rebuttal to this
evidence as Savita Verma, Respondent No.3 preferred not to
enter the witness box. On the basis of material produced on
record it was proved that the accident was caused on account of
rash and negligent driving of the offending car by Respondent
No.3.
12. With regard to the deceased's income, Ram Babu, the
deceased's father testified that his son had studied upto 10th
standard. He was doing a Private job and was earning about `
5,000/- per month. The details of the private job were not given
by Ram Babu. Although, he denied the suggestion that Rahul
was not earning `5,000/- per month, it was proved on record
that the deceased had failed in Matriculation; the Claims
Tribunal was justified in taking the Minimum Wages of a Non-
Matriculate for computation of the loss of dependency.
However, addition of 50% on account of inflation was not
justified.
13. In Dhaneshwari & Another v. Tajeshwar Singh & Others, MAC.
APP 997/2011 decided on 19.3.2012, after noticing the
Judgments of this Court in Smt. Anari Devi v. Shri Tilak Raj &
Anr., II (2004) ACC 739; (2005 ACJ 1397); National Insurance
Co. Ltd. v. Pooja & Ors., II (2006) ACC 382 (2007 ACJ 1051);
Om Kumari & Ors. v. Shish Pal & Ors, 140 (2007) DLT 62;
Narinder Bishal & Anr. v. Rambir Singh & Ors., MAC APP.
1007-08/2006, decided on 20.02.2008; New India Assurance
Co. Ld. v. Vijay Singh MAC APP. 280/2008 decided on
09.05.2008; Oriental Insurance Company Limited v. Smt. Rajni
Devi & Ors. MAC APP.286/2011 decided on 06.01.2012; Smt.
Gulabeeya Devi v. Mehboob Ali & Ors. MAC APP.463/2011
decided on 10.01.2012; and IFFCO TOKIO Gen. Ins. Co. Ltd.
v. Rooniya Devi & Ors. MAC APP.189/2011 decided on
30.01.2012; and Division Bench Judgments of this Court in
Delhi Transport Corporation and Anr. v. Kumari Lalita 22
(1982) DLT 170 (DB); and Rattan Lal Mehta v. Rajinder
Kapoor & Anr. II (1996) ACC 1 (DB), this Court has held that
in view of Rattan Lal Mehta (supra) increase in minimum
wages cannot be given on account of future inflation.
14. The loss of dependency thus comes to `3,11,556/- (3709/- x 12
x 1/2 x 14).
15. The Claims Tribunal awarded a sum of `50,000/- towards Loss
of Love and Affection. Loss of love and affection can never be
measured in terms of money. Thus, uniformity has to be
adopted by the Courts while granting non-pecuniary damages.
The Supreme Court in Sunil Sharma v. Bachitar Singh (2011)
11 SCC 425 and in Baby Radhika Gupta v. Oriental Insurance
Company Limited (2009) 17 SCC 627 granted only ` 25,000/-
(in total to all the claimants) under the head of Loss of Love and
Affection. Thus, I would reduce the compensation under this
head to `25,000/- only.
16. The Claims Tribunal awarded a sum of `25,000/- towards
Funeral Expenses. In Sarla Verma (Smt.) & Ors. v. Delhi
Transport Corporation & Anr., (2009) 6 SCC 121 it was held
that the Funeral Expenses have to be awarded on actual basis.
No evidence was led as to the amount spent on Funeral
Expenses. In the absence of any evidence, it was just and
proper to grant a sum of `10,000/- only towards Funeral
Expenses.
17. No compensation was awarded towards Loss to Estate. A
provision of `10,000/- ought to have been made. I make an
award accordingly.
18. Respondents No.1 and 2 proved on record the bill Ex.PW-1/1
issued by the Fortis Hospital for `2,09,379/- for expenditure on
treatment. This seems to have escaped the attention of the
Claims Tribunal. Respondents No.1 and 2 are entitled to the
expenditure incurred on the treatment of the deceased on
account of injuries suffered by him till he died. I therefore,
make an award of `2,09,379/- towards expenditure on treatment
of the deceased as per bill Ex.PW-1/1.
19. In view of the above, the amount of compensation is
recomputed as under:-
Sl. Compensation under Awarded by Awarded by
various heads the Claims this Court
No. Tribunal
1. Loss of Dependency 4,67,334/- `3,11,556/-
2. Love and Affection `50,000/- `25,000/-
3. Funeral Expenses ` 25,000/- `10,000/-
4. Loss to Estate -- `10,000/-
5. Expenditure incurred on -- `2,09,379/-
treatment
Total ` 5,42,334/- ` 5,65,935/-
20. The compensation is thus enhanced from `5,42,334/- to
`5,65,935/- which shall carry interest @7.5% per annum from
the date of filing of the Petition till the date of deposit.
21. Tata AIG General Insurance Company Limited is directed to
deposit the enhanced compensation alongwith interest within
six weeks with UCO Bank, Delhi High Court Branch, New
Delhi in the proportion as awarded by the Claims Tribunal in
the name of the Appellants.
22. The enhanced compensation shall be released in favour of the
Appellants in terms of the Tribunal's order.
23. Both the Appeals are allowed in above terms.
24. The statutory deposit of `25,000/- be refunded to the Insurance
Company.
(G.P. MITTAL)
JUDGE
APRIL 26, 2012
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