Delhi High Court
New India Assurance Ltd. vs Gunjan & 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. 708/2010
NEW INDIA ASSURANCE LTD. ..... Appellant
Through Mr. K.L. Nandwani, Advocate
versus
GUNJAN & ORS ..... Respondents
Through Mr. S.N. Parashar, Advocate
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant New India Assurance Company Limited
impugns a judgment dated 12.07.2010 whereby a compensation
of `7,61,704/- was awarded to Respondents No. 1 to 3 for the
death of Rajesh Kumar, who died in a motor accident which
occurred on 28.01.2005.
2. The following contentions are raised on behalf of the
Appellant:-
(i) Negligence on the part of the driver (Anupam Arora) of
two wheeler No. DL-7SK-7973 was not proved. In any
case, it was a case of contributory negligence and the
entire liability could not have been fastened on the
Appellant Insurance Company to pay the compensation.
(ii) No evidence was produced by the Respondents No.1 and
3 to establish that the death was the proximate cause of
the injuries suffered in the motor accident which took
place on 21.08.2005.
(iii) The Claims Tribunal in the absence of any evidence as to
the deceased's income took the minimum wages of an
unskilled worker but erred in making addition of 50% on
account of inflation which was not permissible in view of
the judgment in Rattan Lal Mehta v. Rajinder Kapoor &
Anr. II (1996) ACC 1 (DB), and Dhaneshwari & Another
v. Tajeshwar Singh & Others, MAC. APP 997/2011
decided on 19.3.2012.
3. On the issue of negligence, Smt. Gunjan, the deceased's widow
entered the witness box as PW-1. She testified that on
28.01.2005 at about 11:30 A.M. she was standing Opposite a
Juice Shop at Andrewj Ganj Bus Stop, Ring Road. Her husband
Rajesh Kumar was crossing the road for hiring a taxi. In the
meanwhile, a motorcycle bearing No.DL-7SK-7973 came from
the side of Mool Chand Hospital. It jumped the Red Light
Signal and hit her husband while it was being driven at the
speed of 80-90 km/hr. Her husband fell down and suffered
severe head injury. She deposed that the motorcyclist and the
girl, who was the pillion rider also fell down and suffered
injuries in the accident. The motorcyclist was caught at the
spot. He gave his name as Anupam Arora. She also noted
down the number of the motorcycle.
4. The factum of the accident has not been disputed by the driver
of the motor cycle. There is no serious challenge to the
testimony of PW-1 in cross-examination on the aspect of
negligence. No suggestion was given to PW-1 that the
motorcyclist did not jump the Red Light Signal or that his speed
was not excessive. All the same, Anupam Arora, Respondent
No.4 did not enter the witness box to rebut PW-1's testimony.
Negligence was sufficiently proved on the touchstone of
preponderance of probability as is required in a Claim Petition
filed under Section 166 of the Motor Vehicles Act.
5. The Discharge Summary Ex.PW-1/1 shows that the deceased
had suffered head injury in the accident. At the time of his
discharge there was "severe head injury left temporal with
abscess hydrocephalus". The deceased remained admitted in
AIIMS from 28.01.2005 to 08.04.2005. He underwent surgeries
on 29.01.2005 and 24.02.2005. In the Postmortem Report Ex.
PW-4/1 the cause of death was stated to be "brain abscess".
Although, the deceased succumbed to the injuries only on
26.1.2005, since the death was on account of brain abscess, the
proximate cause of his death was the injuries suffered in the
accident which occurred on 28.01.2005.
6. The contention raised on behalf of the Appellant Insurance
Company is without any substance and is therefore, rejected.
7. 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.
8. In this case the deceased's salary was claimed to be `5,000/- per
month. In the absence of any evidence, the Claims Tribunal
took the minimum wages of an unskilled worker fixed under the
Minimum Wages Act and added 50% on account of inflation,
which should not have been given as has been held above. Thus,
the loss of dependency would come to ` 3,89,760/- (3045/- x
2/3 x 12 x 16).
9. No other contention has been raised on behalf of the Appellant
and no challenge has been made to the compensation awarded
under other heads.
10. On account of change in the loss of dependency, the overall
compensation is reduced from `7,61,704/- to ` 5,66,760/-.
11. The excess amount of `1,94,944/- along with the proportionate
interest and the interest accrued, if any, during the pendency of
the Appeal shall be refunded to the Appellant New India
Assurance Company Limited.
12. The statutory deposit of `25,000/- shall also be refunded to the
Appellant Insurance Company.
13. The Appeal is allowed in above terms.
(G.P. MITTAL)
JUDGE
APRIL 26, 2012
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