New India Assurance Co. Ltd. vs Chanderkala Devi & Ors.
2012 Latest Caselaw 43 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Reserved on: 21st December, 2011
                                    Pronounced on: 3rd January, 2012

+        MAC. APP. 416/2011

         NEW INDIA ASSURANCE CO. LTD.        ..... Appellant
                  Through: Ms. Neerja Sachdeva, Adv.

                                Versus

         CHANDERKALA DEVI & ORS.           ..... Respondents
                Through: Mr. Navneet Goyal, Adv. for R-1 to
                         R-5.
                         Mr. A. K. Tyagi, Adv. for R-7.

+        MAC. APP. 575/2011

         CHANDERKALA DEVI & ORS.            ..... Appellants
                Through: Mr. Navneet Goyal, Adv.

                                Versus

         TAHIR & ORS.                             ..... Respondents
                  Through:      Mr. A. K. Tyagi, Adv. for R-2.
                                Ms. Neerja Sachdeva, Adv. for R-3.

         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL
                       JUDGMENT

G. P. MITTAL, J.

1. These are two cross-appeals i.e. MAC. APP. No.416/2011 filed by New India Assurance Co. Ltd. for reduction in the award

amount and MAC. APP. No.575/2011 filed by Chandra Kala Devi and other legal heirs of deceased Braham Dev Paswan for enhancement of compensation. These appeals arise out of an award dated 17.03.2011 passed by the Motor Accident Claims Tribunal (the Tribunal) whereby a compensation of ` 5,77,162/- was awarded to the Claimants. For the sake of convenience, the Appellants in MAC. APP. No.416/2011 and the contesting Respondent in MAC. APP. No.575/2011 i.e. New India Assurance Co. Ltd. is referred as "Insurer" and the Respondents in MAC. APP. No.416/2011 and Appellants in MAC. APP. No.575/2011 are referred as "Claimants".

2. On 24.06.2009 at about 3:00 PM deceased Braham Dev Paswan was paddling his bicycle and proceeding towards Kanjhawala Road from his residence in Rohini. A Truck No.DL-1GB-3085 driven by its driver came from the front side and hit Braham Dev Paswan, who suffered fatal injuries. During inquiry before the Tribunal it was claimed that the deceased was working as a Book Binder and earning ` 11,000/- per month. In the absence of any reliable evidence as to the deceased‟s income the Tribunal took the minimum wages of a semi-skilled worker for a Book Binder, added 50% rise in price index and inflation on the basis of judgment of this Court in Sajha & Ors. v. National Insurance Co. Ltd., MAC. APP. No.222/2009 decided on 19.08.2009 and computed the loss of dependency at ` 7,19,550/- The Tribunal further found that there was contributory

negligence to the extent of 25% as the deceased himself was riding the cycle on the wrong side of the road and thus contributed to the accident. The contentions raised on behalf of the Insurer are: -

(i) The contributory negligence ought to have been taken as 50% as it was a head on collusion and the deceased was riding the cycle on wrong side of the road.

(ii) In the absence of proof of any income, increase of 50% in the minimum wages was not called for. In any case since the deceased was aged 47 years at best the increase could have been taken as 30%.

3. These contentions are controverted on behalf of Claimants. It is urged that there was no negligence on the part of the deceased and the Tribunal committed an error in holding that the deceased also contributed to the accident. It is contended that the deceased‟s income of ` 11,000/- per month as claimed ought to have been believed as it was proved that the deceased was carrying papers for binding at the time of the accident.

4. While dealing with the question of negligence the Tribunal held as under: -

"PW-2 an eye witness in his affidavit of evidence disclosed how and in which manner accident took place and entirely blamed driver of offending truck in causing the accident. This witness happened to be present near the spot of accident being the

deceased's son and gave statement to police on the same day on which FIR was registered. He was going behind the deceased at his own bicycle. He further stated in his affidavit that their bicycles were being driven on the left side of the road whereas offending truck came from front side and hit the bicycle of the deceased. However in the cross examination he changed his version to some an extent and admitted that they were going on their bicycles on the right side of the road (wrong side). In the FIR, it is alleged that offending truck came from backside but from the cross examination of PW-2, it is revealed that truck came from front side and hit the bicycle of the deceased.

Though from the statement of PW-2, it has come on record that truck was being driven in rash and negligent manner at fast speed but from the admissions of this witness, it is also established that truck was coming on its right side from front whereas deceased was going on the wrong side of the road and the accident took place as head on collusion and truck had not hit the bicycle of the deceased from behind. There may be some fault of the truck driver in driving the truck rashly but there is also contributory negligence on the part of the deceased in paddling bicycle on the wrong side of the road. Deceased was going on a slow moving vehicle and was required to paddle his bicycle on the left side of the road but he was also negligent in going on the wrong side of the road. In such situation, I am of the view that at least 25% compensation has to be reduced on account of contributory negligence."

5. It is important to note that in his affidavit PW-2 was categorical that they were riding the bicycle on the left side of the road.

However, in cross-examination he deposed that they were going on their bicycles on the right side of the road. The Tribunal took the right side of the road as if the bicycles were being driven on the wrong side of the road. Certified copy of the site plan prepared in the criminal case FIR No.200, P.S. Vijay Vihar under Sections 279/ 304 IPC clearly shows the places where the accident took place, where the Truck was parked and where the cycle was lying after the accident. The site plan clearly shows that the cyclist was going on the left side. The place of accident i.e. marked „C‟ shows that the Truck came on the right side of the road to hit the cyclist. After the accident the Truck was parked on the extreme right of the road. Had the accident taken place if the Truck was being driven on its left side, there was no reason for the driver to have gone on the wrong side simply to park the Truck thereafter the accident. It is, therefore, evident that the Tribunal fell into error in reaching the conclusion that the deceased contributed to the accident. The finding on this aspect has to be set-aside. In view of PW-2‟s testimony coupled with the site plan and other documents placed on record, I hold that the driver of Truck No.DL-1GB-3085 was solely responsible for the accident.

6. On the quantum of compensation PW-2 deposed that his father Braham Dev Paswan was working as a Book Binder and was earning ` 11,000/- per month. PW-2‟s testimony in this regard was not believed in the absence of any documentary evidence.

No suggestion was given to PW-2 that the deceased was carrying papers on his bicycle for getting done some binding work. In the absence of any documentary evidence that the deceased‟s income was ` 11,000/- the Tribunal was justified in taking the minimum wages of a semi-skilled worker i.e. ` 4,100/- per month. The Tribunal added 50% of minimum wages to account for rise in price index and inflation on the basis of the judgment Sajha & Ors. v. National Insurance Co. Ltd., MAC. APP. No.222/2009 decided on 19.08.2009. Similar view was taken by this Court in UPSRTC v. Munni Devi, IV (2009) ACC 879; National Insurance Company Ltd. v. Renu Devi & Ors., III (2008) ACC 134 and Narinder Bishal & Anr. v. Rambir Singh & Ors., MAC APP. 1007-08/2006 decided on 20th February, 2008.

7. It has to be borne in mind that the minimum wages are revised from time to time not only to meet the inflation but also to give benefit of growth in GDP and to provide a better standard of living to the lowest paid workers in the country.

8. At the same time the Court while granting benefit of increase in minimum wages has to be conscious about the length of dependency. In the case of Sarla Varma v. DTC, (2009) 6 SCC 121 it was held that where the deceased had permanent employment, future prospects by addition of 50% may be granted where the deceased was below the age of 40 years and 30% where the deceased was between 41 to 50 years and nil

where the deceased was above 50 years of age. In case of minimum wages also if a person is more than 50 years, his contribution towards loss of dependency would end very early as against a young person aged between 22 to 40 years. There may be cases where the deceased may be aged 60 years or more. Thus, it cannot be laid down as a universal rule that the Claimants would be entitled to an addition of 50% where the income has been assessed on the basis of minimum wages. In my view it would be appropriate to give the benefit of 50% where the deceased was below 40 years and of 30% where the deceased was between 40 to 50 years. Benefit of increase in minimum wages should not be extended to, where the deceased was above 50 years.

9. On the basis of the above discussion the revised dependency comes to ` 6,23,610/- (` 4,100/- + 30% - ¼ x 12 x 13). After adding the conventional sum of ` 25,000/- towards love and affection, ` 10,000/- towards loss of consortium, ` 10,000/- towards loss of estate and ` 5,000/- towards funeral expenses as granted by the Tribunal, the overall compensation comes to ` 6,73,610/-.

10. The enhanced amount shall carry interest @ 7.5% from the date of filing of the petition till the date of payment. The Insurer (New India Assurance Co. Ltd.) is directed to deposit the enhanced amount with the Registrar General of this Court within six weeks of the date of order.

11. The enhanced amount shall be payable to Claimant Chandra Kala Devi only. 80% of the amount along with proportionate interest shall be held in Fixed Deposit for a period of 5 years. Rest of the amount shall be released forthwith.

12. The MAC. APP. No.416/2011 is devoid of any merit. The same is dismissed.

13. The MAC. APP. No.575/2011 is allowed in above terms. No costs.

14. The impugned award is modified and the Appeals are disposed of in above terms. No costs.

(G.P. MITTAL) JUDGE JANUARY 03, 2012 hs