Delhi High Court
New India Assurance Co. Ltd vs Pratima Devi & Ors on 31 August, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 31st August, 2012
+ MAC.APP. 558/2012
NEW INDIA ASSURANCE CO. LTD ..... Appellant
Through: Mr. K.L.Nandwani, Adv.
versus
PRATIMA DEVI & ORS ..... Respondent
Through: Mr. Manoj R. Sinha, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
CM APPL.9160/2012 (Exemption)
Exemption allowed, subject to all just exceptions.
The Application is allowed.
MAC APP. 558/2012
1. Issue Notice to Respondent No.1 (the Claimant).
2. Mr. Manoj R. Sinha, Advocate accepts notice on behalf of Respondent
No.1. He submitted that he is prepared with the arguments and the Appeal
can be finally disposed of.
3. The Appellant New India Assurance Company Limited impugns a
judgment dated 19.03.2012 passed by the Motor Accident Claims
Tribunal (the Claims Tribunal) whereby a compensation of `5,87,176/-
was awarded for the death of Rakesh Singh, a bachelor who died in a
motor vehicle accident which occurred in the night intervening
4/5.05.2007.
4. The following contentions are raised on behalf of the Appellant:-
(i) There was contributory negligence on the part of the driver of the
Qualis in which the deceased was travelling. Thus, the driver and
owner of the Qualis were equally liable.
(ii) The deceased was working as an Assistant steward at Pot Pourri
Restaurant (Nirulas), Preet Vihar Delhi. He was admittedly getting
a salary of `3540/- per month. The Claims Tribunal erred in taking
the minimum wages to award loss of dependency. There was no
evidence with regard to deceased's future prospects thus, there
could have been addition of only 30% towards the inflation on the
basis of Santosh Devi v. National Insurance Company Ltd. & Ors.,
2012 (4) SCALE 559.
(iii) Since there was only one dependent, that is, the deceased's mother
Pratima Devi (the First Respondent), there should have been
deduction of 50% towards the personal and living expenses.
5. On the other hand, it is urged by the learned counsel for Respondent No.1
that there was no negligence on the part of the driver of Qualis No.DL-
7CE-1884. PW-2's testimony was not challenged, thus negligence on the
part of driver of truck No.UP-14AJ-9111 was sufficiently established. It
is contended that the compensation awarded is just and reasonable.
NEGLIGENCE:-
6. In order to establish negligence, the Claimant examined Pratima Devi as
PW-2. In her Affidavit Ex.PW-2/A (by way of her examination-in-chief)
she testified that on 05.05.2007 at about 3:50 AM they were proceeding
to Almora for the last rites of her deceased husband. When they reached
near Vam Factory, Gajraula, U.P. a truck No.UP-14-AJ-9111 driven by
its driver Ram Lal Sahni (Respondent No.2) in a rash and negligent
manner, came from the opposite direction. The truck came from the
wrong side of the road and hit the Qualis. The Qualis was badly damaged
and both of her sons suffered fatal injuries. PW-2's testimony on the
factum of negligence was not challenged in cross-examination, not even a
suggestion was given that the truck was not being driven in a rash and
negligent manner.
7. The learned counsel for the Appellant Insurance Company drew my
attention to the copy of the site plan placed on record by the Claimant to
emphasize that it was a head on collision and, therefore contributory
negligence must be inferred on the part of the Qualis driver. It cannot be
laid down as an absolute proposition that in every case of head on
collision there will be contributory negligence on the part of both the
drivers. As stated earlier, PW-2's testimony was not challenged in cross-
examination. In a Petition under Section 166 of the Motor Vehicles Act,
1988 (the Act) negligence is required to be proved only on the touchstone
of preponderance of probability which was adequately done in this case.
The finding on negligence thus cannot be faulted.
QUANTUM OF COMPENSAITON
8. Coming to the quantum of compensation, the deceased Rakesh Singh was
working as an Assistant Steward. As per the Claim Petition, the deceased
was getting a salary of `3540/-. However, during evidence, PW-2
deposed that the deceased was getting a salary of `4500/- per month. The
deceased was working as an Assistant Steward with a well known chain
of Restaurants 'Nirulas' The Minimum Wages of a skilled worker at the
time of the accident were `3895/-. The actual increase in minimum wages
is given by the Establishment in due course. The Claims Tribunal,
therefore, rightly took the minimum wages of a Matriculate i.e. `3918/- to
compute the loss of dependency.
9. The salary slip of deceased was placed on record to prove that he was in
regular employment and contributed towards Provident Fund and ESI. In
the circumstances 50% addition towards future prospects was justified.
10. The First Respondent was the only dependent, thus, deduction would be
50% instead of one-third taken by the Claims Tribunal. The loss of
dependency therefore, comes to `3,87,882/- (3918/- + 50% x 1/2 x 12 x
11) as against `5,17,176/- awarded by the Claims Tribunal.
11. The Respondent no.1 is further entitled to a sum of `70,000/- under non-
pecuniary heads, as awarded by the Claims Tribunal.
12. The compensation is thus reduced by `1,29,294/-.
13. The excess amount of `1,29,294/- along with proportionate interest and
the interest accrued, if any, during the pendency of the Appeal shall be
refunded to the Appellant Insurance Company.
14. The awarded amount along with proportionate interest @ 7.5% per
annum shall be released in favour of the First Respondent in terms of the
order passed by the Claims Tribunal.
15. The Appeal is allowed in above terms.
16. The statutory deposit of `25,000/- shall be refunded to the Appellant
Insurance Company.
17. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
AUGUST 31, 2012
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