Delhi High Court
Santosh Bindal & Ors vs National Insurance Co. Ltd. & Ors on 9 January, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 5th January, 2012
Pronounced on: 9th January, 2012
+ FAO 85/1997
SANTOSH BINDAL & ORS. ..... Appellants
Through Mr. Nitinjya Chaudhary, Advocate
versus
NATIONAL INSURANCE CO. LTD. & ORS.... Respondents
Through Mr. Pradeep Gaur Advocate with
Mr. Amit Gaur, Advocate for
Respondent No.1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellants who are the legal heirs of the deceased Basant
Lal @ Basant Kumar Bindal impugn the judgment dated
09.08.1996 passed by the Motor Accident Claims Tribunal (the
Tribunal) whereby the petition under Section 166 of the Motor
Vehicles Act (the M.V. Act) was dismissed on the ground that
the Appellants (the Claimants) failed to establish that the
accident was caused on account of rash and negligent driving of
truck number HRB-5865 driven by the third Respondent
Jagdish Lal.
2. The following contentions are raised on behalf of the
Appellants:-
(1) The accident was caused on account of rash and negligent
driving of truck number HRB-5865 by the third
Respondent Jagdish Lal which was amply proved by the
testimony of PW-1 Ashok Kumar. In any case, his
testimony could not have been rejected in the absence of
any rebuttal by examining Jagdish Lal, the third
Respondent.
(2) The Tribunal did not compute the quantum of
compensation payable to the Appellants as negligence
itself was not established. This Court being the Court of
First Appeal is empowered under Order 41 Rule 24 to
decide the quantum of compensation instead of
remanding the case to the Tribunal for its decision on the
issue.
3. Per contra, it is contended by the learned counsel for the First
Respondent (National Insurance Company Limited) that it was
not possible for a person to see an accident from a distance of
3000 yds. The Tribunal, therefore, rightly disbelieved PW-1.
The Tribunal's finding that negligence on the part of Jagdish
Lal in causing the accident was not established and the same
cannot be faulted.
NEGLIGENCE:-
4. Ashok Kumar (PW-1) deposed that on 16.03.1993 at about 9:15
P.M. he was proceeding to Shahpur on foot. When he was at a
distance of half a km. from Bhorgarh, he noticed a two wheeler
with two persons, going ahead of him. It was going on the
correct side of the road. A truck number HRB-5865 came from
the opposite direction (wrong side) at a high speed and struck
against the scooterist, due to which the scooterist fell down.
The truck did not stop. Both the driver and his pillion rider were
dragged by the truck and only after a distance of 10-15 steps did
the truck stopped. He testified that the driver ran away from the
spot. People collected at the site of the accident. Both the
injured were removed to Hindu Rao Hospital. One person died
at the spot.
5. The Tribunal while disbelieving PW-1's testimony relied on his
cross-examination wherein the witness had stated that the
accident took place at a distance of 3000 yds. The Tribunal
referred to the judgment of M. Subramanium v. General
Manager, 1991 DLT 750, where an eye witness who had seen
the occurrence form 100 ft. was disbelieved on the ground that
it was not possible to believe that in the ordinary course of
human conduct a person walking more than 100 ft. behind
would have noticed as to in what manner the person going
ahead on a bicycle would have met with an accident.
6. In my view, the Tribunal fell into error in holding that the PW-1
deposed that he saw the accident from a distance of 3000 yds. In
fact, in the cross-examination the witness deposed that he was at
a distance of one kila. The witness then gave the dimension of
one kila to be equal to 3000 yds. The dimension of a kila (in
the case of agriculture) differs from place to place. It was in
this context that a clarification was obtained from this witness.
The length and breadth of one kila of land may differ in each
case but it can definitely be said that PW-1 did not see the
incident from a close quarter.
7. It is important to note that the accident took place in the night
(at 9:15 P.M.). The witness was categorical that the deceased
was going on his correct side and that the truck came from the
opposite direction travelled on the wrong side and hit the
scooterist. It may be mentioned that Jagdish Lal, the third
Respondent appeared before the Tribunal on 24.09.1993. He
admitted that the accident took place with a truck number HRB
5865 on 16.03.1993. He was driving the truck at the time of the
accident in which Basant Lal suffered fatal injuries. Although,
the third Respondent appeared in the Court on 24.09.1993 and
the case was adjourned for filing of the written statement yet the
driver and the owner of the truck number HRB 5865 preferred
not to file any written statement and they were proceeded ex-
parte.
8. Much ado is made about the fact that PW-1 could not have seen
the accident at a such great distance. It is contended that there
was another person (excluding the deceased) who was travelling
on the scooter and that the said person ought to have been
produced to depose about the manner of the accident. It has to
be borne in mind that in a Claim Petition under Section 166 of
the M.V. Act the negligence has to be proved on the touch stone
of preponderance of probability. (Parmeshwari v. Amir Chand
& Ors., 2011 (11) SCC 635; and Kusum Lata & Ors. v. Satbir
& Ors., 2011 (3) SCC 646).
9. Jagdish Lal, the third Respondent as stated earlier admitted the
involvement of the truck and its being driven by him at the time
of the accident. He preferred not to appear to controvert the
allegations of negligence made in the petition and then as
deposed by PW-1. In the circumstances, the Tribunal ought to
have relied on PW-1's testimony to reach the conclusion that
the accident was caused on account of rash and negligence
driving of the third Respondent as the Appellants were required
to prove the negligence preponderance of probabilities are not
beyond the shadow of all reasonable doubt. M. Subramanium v.
General Manager (supra) relied on by the Tribunal, is not
attracted to the facts of the present case as the factum of
accident is admitted by the third Respondent in this case. Thus,
there is no escape from the conclusion that the culpable
negligence and rashness in driving truck number HRB 5865 at
the time of the accident is proved by the Appellants.
QUANTUM OF COMPENSATION
10. Order 41 Rule 24 of the code of Civil Procedure reads as
under:-
"24. Where evidence on record sufficient,
Appellate Court may determine case finally -
Where the evidence upon the record is sufficient to
enable the Appellate Court to pronounce
judgment, the Appellate Court may, after resettling
the issues, if necessary, finally determine the suit,
notwithstanding that the judgment of the Court
from whose decree the appeal is preferred has
proceeded wholly upon some ground other than
that on which Appellate Court proceeds".
11. The proposition of law is not disputed by the learned counsel
for the first Respondent that even if no finding on the quantum
of compensation is given by the Tribunal, this Court as the
Court of first Appeal can appreciate the evidence and compute
the compensation.
12. The First Appellant entered the witness box as PW-4. She
deposed that her husband was 32 years at the time of the
accident. He left behind two children, aged 5 years and 3 years
and a mother aged about 60 years. She further deposed that her
husband was working as a Supervisor in a factory and was
getting a salary of ` 2,500/- per month. She deposed that her
husband owned 4½ kila of land and had an annual income of `
25,000/- from that. She proved jamabandi Ex.PW-4/1. In cross-
examination, the witness deposed that after the death of her
husband her devar (husband's brother) was looking after the
land and was giving her ` 7,000/- per annum.
13. It is not the Appellants' case that husband was doing the service
in Delhi and was returning home in Village Khurshid Nagar,
Tehsil Kosli, District Rohtak to look after the land. If the land
was being given on contract basis even when the deceased was
alive, the same was being done even after his death. Thus, no
compensation can be awarded on account of any loss of income
for non-supervision of agriculture.
14. The Appellants also examined PW-3 Mahavir Prasad who was
the husband of the Proprietor of M/s. Bindal Industries. He
proved the certificate Ex.PW-3/1 showing that the deceased was
being paid a salary of `2,500/- per month. The witness also
produced the attendance register and the accounts book. In
cross-examination, the witness admitted that no appointment
letter was issued to the deceased. He added that the salary was
being paid to the deceased by cheque.
15. PW-3's testimony that the attendance register mentioning the
deceased's name was being maintained and that he was being
paid salary by cheque was not challenged in the cross-
examination. From the salary certificate Ex.PW-3/1, it is
established that the deceased was working as a supervisor in
M/s. Bindal Industries and was getting a salary of `2,500/- per
month.
16. The Supreme Court in the case of Sarla Verma v. Delhi
Transport Corporation & Anr., (2009) 6 SCC 121 laid down the
following principles for grant of compensation in death cases:-
"I. MULTIPLIER
Age of the Multiplier
deceased (in
years)
II. DEDUCTION FOR PERSONAL AND LIVING
EXPENSES
Deceased - unmarried
(i) Deduction towards personal expenses.
: 1/2 (50%)
(ii) Deduction where the family of the
bachelor is large and dependent on the
income of the deceased.
: 1/3rd (33.33%)
Deceased - married
(i) 2 to 3 dependent family members. : 1/3rd
(ii) 4 to 6 dependent family members : 1/4th
(iii) More than 6 family members : 1/5th
(iv) Subject to the evidence to the
contrary. : Father, brother and
sisters will not be
considered as
dependents.
III. FUTURE PROSPECTS
(i) Permanent job : Actual salary - tax + 50%
Below 40 years of age towards future prospects.
(ii) Permanent job : Actual salary - tax + 30%
Between 40-50 years towards future prospects.
(iii) More than 50 years with: Actual salary only.
permanent job. No addition for future
prospects.
(iv) Deceased employed at a fixed: Only actual income to be
Salary (without provision for taken. No addition.
Annual increments)"
17. The Appellants would be entitled to addition of 50% of salary
towards future prospects as he was in stable employment. Since
the number of dependents were four, one-fourth of deceased's
income was liable to be deducted towards his personal and
living expenses. The appropriate multiplier on the age of 32
years of the deceased would be 16. The loss of dependency
works out as `5,40,000/- (2500/- + 50% - 1/4 x 16 x 12).
18. In addition the Appellant No.1 is entitled to compensation of
`10,000/- towards loss of consortium; Appellant Nos. 2 to 4 are
entitled to compensation of ` 25,000/- towards loss of love and
affection.
19. The Appellants are further entitled to a sum of ` 5,000/- towards
funeral expenses and ` 10,000/- towards loss of estate. The
overall compensation payable comes to `5,90,000/- (i.e. `
5,40,000/- + ` 50,000/-).
20. The amount of compensation shall carry interest @ 7.5% per
annum from the date of filing of the petition till the date of
payment. National Insurance Company, the first Respondent is
directed to deposit the amount of compensation along with upto
date interest within 30 days with the Registrar General of Delhi
High Court, New Delhi.
21. 50% of the compensation shall be payable to Appellant No.1
Smt. Santosh Bindal. 15% each to Appellants No.2 and 3
Ankush Bindal and Ena Bindal (who must have attained the age
of majority now) and 20% compensation shall be payable to the
Appellant No.4 Smt. Angoori Devi.
22. Since the accident took place almost 18 years back, 50% of the
compensation awarded along with the interest shall be released
to the Appellants forthwith. Rest of the 50% shall be held in
fixed deposits for a period of two years in UCO Bank, Delhi
High Court Branch, New Delhi. Appellants No. 2 and 3 shall be
entitled to premature release of the amount deposited, if needed
for their education.
23. The impugned award is set aside and the Appeal is allowed in
above terms. No costs.
(G.P. MITTAL)
JUDGE
JANUARY 09, 2012
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