Delhi High Court
New India Assurance Co. Ltd. vs Baby Pandey & Ors on 16 August, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 19th July, 2012
Pronounced on: 16th August, 2012
+ MAC APP. 569/2011
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. Vishnu Mehra and Ms. Sakshi Gupta,
Advocates
Versus
BABY PANDEY & ORS ..... Respondents
Through: Mr. S. Shahi, Advocate for the
Respondents(Claimants).
WITH
+ MAC APP. 287/2011
BABY PANDEY & ORS ..... Appellants
Through: Mr. Vishnu Mehra and Ms. Sakshi Gupta,
Advocates
Versus
NEW INDIA ASSURANCE CO. LTD. ..... Respondent
Through: Mr. S. Shahi, Advocate.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. These two Appeals (MAC. APP.569/2011 and MAC. APP.287/2011)
arise out of a judgment dated 20.11.2010 (corrected by an order dated
24.01.2011) passed by the Motor Accident Claims Tribunal(the Claims
Tribunal) whereby a compensation of Rs.10,97,975/- was awarded for the
death of Suresh Kumar Pandey who died in a motor vehicle accident
which occurred on 31.05.2006.
2. On appreciation of evidence, the Claims Tribunal while relying on Union
of India v. Rajo and Others, 116 (2005) DLT 226, N.K.V. Bros (P) Ltd. v.
M. Karumai Ammal & Ors.,(1980) 3 SCC 457 and Basant Kaur and
Others v. Chatarpal Singh and Others, 2003 ACJ 369 opined that the
accident was caused on account of rash and negligent driving of truck
No.HR.38A-4881 by the Respondent No.4 Pawan Kumar. It was held
that the deceased was employed as an Assistant Personnel with M/s.
Workplace Management and Consultant Pvt. Ltd. and was getting a
salary of Rs.8,000/- per month. The Claims Tribunal deducted 1/3rd
towards personal and living expenses, applied a multiplier of 16 (as the
deceased was aged 32 years) to compute the loss of dependency.
3. The compensation awarded is tabulated hereunder:
Sl. Compensation under Awarded by
No. various heads the Claims
Tribunal
1. Loss of Dependency `10,24,000/-
2. Loss of Love and ` 30,000/-
Affection
3. Loss of Consortium ` 10,000/-
4. Medical Expenses ` 13,775/-
5. Loss of Future Prospects Nil
6. Pain and Suffering Nil
7. Funeral Expenses ` 10,000/-
8. Loss to Estate ` 10,000/-
Total ` 10,97,775/-
4. For the sake of convenience, the Appellants in MAC. APP. 287/2011
shall be referred as the Claimants, whereas the Appellants in MAC.
APP.569/2011 shall be referred as the Insurer.
5. The following contentions are raised on behalf of the Appellant:
(i) The Claimants failed to prove that the accident was caused
because of rash and negligent driving of truck No.HR.38A-
4881. The negligence having not been proved, the
Claimants were not entitled to any compensation. Reliance
is placed on Oriental Insurance Co. Ltd. v. Meena Variyal,
2007 (5) SC 428.
(ii) In any case, it is a case of contributory negligence as the
deceased Suresh Kumar Pandey also contributed to the
accident. The compensation awarded ought to have been
reduced.
6. On the other hand, it is urged by the learned counsel for the Claimants
that the negligence was adequately proved on the touchstone of
preponderance of probability. The compensation awarded is on the lower
side. It was proved that the deceased had good future prospects and an
addition of 50% towards future prospects should have been made.
Reliance is placed on General Manager, Kerala State Road Transport
Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2
SCC 176, Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179, U.P. State
Road Transport Corportion v. Trilok Chandra, (1996) 4 SCC 362 and
Sarla Verma & Ors. v. Delhi Transport Corporation & Anr, (2009) 6
SCC 121.
7. It is no longer res integra that to claim compensation under Section 166
of the Motor Vehicles Act(the Act), the Claimants are required to prove
negligence on the part of the driver of the offending vehicle. In the
instant case, no eye witness was examined. While dealing with the issue
of negligence, the Claims Tribunal held as under:
"17. The petitioner no.1, as PW4, has also stated on oath
that the accident in this case has taken place due to rash and
negligent driving of respondent no.1. Petitioner no.1 has
not been cross-examined by the respondents which indicates
that they have impliedly admitted her testimony to be
correct.
18. The evidence of PW4 is corroborated by the evidence
of PW3 who has deposed that FIR had been lodged
regarding the accident and he had been summoned from the
criminal Court, Gurgaon where his statement was recorded.
19. It can be seen from the criminal case record that the
IO has reached the conclusion after investigation that the
driver of the offending vehicle is respondent no.1 and he was
driving the offending vehicle in a rash and negligent manner
and respondent no.1 is being prosecuted. It is clear that
after due investigation, it has been concluded that it is the
respondent no.1 and none else who has caused the accident.
20. Respondent nos.1 and 2 apparently did not care to
appear before the IO of the criminal case, learned
Magistrate or any authority to inform or complain that
respondent no.1 has been falsely implicated. Neither
respondent no.1 nor respondent no.2 have approached the
High Court for quashing the FIR.
21. The conduct of respondent no.1 in the present matter
appears to indicate that the accident has been caused by
him. It cannot be disputed that respondent no.1 is facing
trial in a criminal case of accident and even the police
investigation has concluded that he is the culprit."
8. Prosecution of a person for rash and negligent driving by itself may not
be sufficient to draw an inference of negligence. Yet, when driver of a
vehicle is prosecuted for rash and negligent driving and Petition under
Section 166 is filed impleading him as the principal tort feasor and the
owner is made vicariously liable, he must come forward to controvert the
averments if the accident was not caused by his rash and negligent
driving. Legal representatives of a victim, obviously, are not present at
the time of the accident. They do not have first hand information as to
how the accident occurred. Sometimes, they may be in a position to
produce a witness who might have seen the accident taking place, and in
some cases, they may not be able to produce an eye witness. When a
criminal case is filed against the driver, the driver and the owner must
come forward to state the manner of the accident.
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 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 the absence of any rebuttal to the prosecution of the driver under
Section 279/304A IPC, the Claims Tribunal rightly took a holistic view to
hold that the accident was caused by the rash and negligent driving of the
offending vehicle by its driver(Respondent Pawan Kumar).
12. Turning to the quantum of compensation. The Claimants examined PW1
Abhishek Yaduvanshi, Sr. Executive, Human Resources, Workplace
Management, who proved the deceased's appointment letter Ex.PW1/2
and his salary certificate Ex.PW1/5. He testified that increment of the
employee varies from 10% to 30%. It was, therefore, established that the
deceased was in a settled employment. He was a young person aged 32
years. Thus, 50% addition in deceased's income was required to be made
as per Sarla Dixit, Susamma Thomas and Sarla Verma. Loss of
dependency thus comes to Rs.15,36,000/- (Rs.8,000/- + 50% x 2/3 x 12 x
16) as against Rs.10,24,000/- awarded by the Claims Tribunal.
13. The award of compensation under other heads is not disputed.
14. The compensation is thus enhanced by Rs.5,12,000/- which shall carry
interest @ 7.5% per annum from the date of the filing of the Petition till
its payment. 50% of the enhanced compensation shall be payable to Ms.
Baby Pandey, the First Claimant and 25% each to Ms. Rakhi and Ms.
Roopa (Appellants in MAC. APP.287/2011). The compensation awarded
to Ms. Rakhi and Ms. Roopa shall be held in Fixed Deposit till they attain
the age of 21 years. 70% of the compensation awarded to Ms. Baby
Pandey shall be held in Fixed Deposit for a period of two years, four
years, six years, eight years, ten years and 12 years in equal proportion.
Rest shall be released on deposit.
15. The insurer The New India Assurance Company Ltd. is directed to
deposit the enhanced amount along with interest in the name of the
Claimants with UCO Bank, Delhi High Court Branch within six weeks.
16. Both the Appeals are disposed of in above terms.
17. Statutory amount of Rs.25,000/- deposited shall be refunded to The New
India Assurance Company Ltd.
18. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
AUGUST 16, 2012
pst
