Delhi High Court
New India Assurance Co. Ltd. vs Reeta Devi & Ors. on 9 August, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 9th August, 2012
+ MAC.APP. 542/2011
NEW INDIA ASSURANCE CO. LTD. ...... Appellant
Through: Mr. Kanwal Chaudhary, Adv.
versus
REETA DEVI & ORS. ...... Respondents
Through: Ms. Rema Nand, Adv.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is directed against a judgment dated 19.03.2011 passed by
the Motor Accident Claims Tribunal (the Claims Tribunal) in a Claim
Petition MACT No.12/2008 whereby a compensation of `8,41,096/- was
awarded for the death of Ramjeevan who died in a motor vehicle accident
which occurred on 01.12.2007.
2. There is twin challenge to the award.
3. It is urged that the accident was caused on account of rash and negligent
driving of Tata tempo No.DL-1M-2887, and thus the owner of truck
No.HR-69-0424 could not have been made liable to pay the
compensation. Consequently. Thus, there was no liability of the
Appellant as Insurer of the aforesaid vehicle (HR-69-0424).
4. In the absence of any evidence, the compensation awarded with respect to
the future prospects granting addition of 50% was excessive and not
permissible. The compensation of `60,000/- awarded towards loss of love
and affection is on the higher side.
5. While dealing with the issue of negligence, the Claims Tribunal held as
under:-
"PW2 Sh. Rohtas Singh is the eye witness of the case who has
stated that on 01.12.07 at about 11:45 pm he was driving the
vehicle no.DL-1M-2887 and when he reached near Mukandpur
Red Light, one other vehicle no.HR-69-044 came at a very high
speed and hit the vehicle no.DL-1M-2887 and three other
labourers also sustained injuries. I perused the cross-examination
of PW2 conducted on behalf of R3 and found that it has not been
denied that PW2 was driving the vehicle No.DL-1M-2887 on the
date of accident. Certified copies of criminal record show that R1
was charge-sheeted by the police. Certified copy of PMR of
deceased proves the accidental death of deceased Ramjeevan.
Considering the testimony of PW1, PW2 and certified copies of
criminal record, I am of the view that petitioners have proved the
fact that deceased had died due to injuries sustained by him in the
accident caused due to rash and negligent driving of vehicle
No.HR-69-0424."
6. Thus, it may be noticed that PW-2's testimony was supported by the
prosecution of driver of truck No.HR-69-0424. The driver of the
offending truck has not entered the witness box to rebut PW-2's
testimony.
7. The learned counsel for the Appellant referred to the site plan prepared in
the criminal case and urged that the driver of the tempo No.DL-1PM-
2887 should have been more cautious as he was to take a right turn. A
perusal of the site plan would show that the accident took place on the
traffic signal on the main road. The manner of the accident was not
suggested to PW-2 in cross-examination. Thus, PW-2's testimony in the
absence of any specific suggestion as to the manner of the accident and
non production of driver of a truck No.HR-69-0424, remained
unchallenged and unrebutted.
8. It is well settled that in a Claim Petition under Section 166 of the Motor
Vehicles Act, 1988 (the Act) negligence has to be proved only on
touchstone of preponderance of probability.
9. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors.,
(2009) 13 SC 530, the Supreme Court held that in a Petition under Section
166 of the Act, the Claimants were merely required to establish their case
on the touchstone of preponderance of probability and a holistic view is
to be taken while dealing with the Claim Petition under the Motor
Vehicles Act. Para 15 of the report is extracted hereunder:
"15. 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."
10. The report in Bimla Devi was relied on by the Supreme Court in its latest
judgments in Parmeshwari v. Amir Chand, (2011) 11 SCC 635 and
Kusum Lata v. Satbir, (2011) 3 SCC 646.
11. In my view, the negligence was proved on the touchstone of
preponderance of probability which was sufficient for the purpose of a
Claim Petition under the Act.
12. It was admitted by the learned counsel for the Claimants that there was no
evidence with regard to the deceased's future prospects. In the
circumstances only an addition of 30% in the income on account of
inflation could be granted. (Santosh Devi v. National Insurance Company
Ltd. & Ors., 2012 (4) SCALE 559).
13. On applying the above ratio, the loss of dependency comes to `6,58,195/-
(3516/- + 30% x 3/4 x 12 x 16).
14. A compensation of `60,000/- was awarded towards the 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.
15. The Claimants are further entitled to a sum of `10,000/- each towards
loss of consortium, loss to estate and funeral expenses.
16. The overall compensation thus comes to `7,13,195/- as against award of
`8,41,096/-.
17. The excess amount of ` 1,27,902/- along with proportionate interest and
the interest accrued, if any, during the pendency of the Appeal shall be
refunded to the Appellant Insurance Company.
18. The statutory deposit of `25,000/- shall be refunded to the Appellant
Insurance Company. Pending Applications stand disposed of.
19. The Appeal is allowed in above terms.
20. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
AUGUST 09, 2012
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