Delhi High Court
New India Assurance Company Ltd vs Swati Thakur & Ors. on 24 July, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 24th July, 2012
+ MAC. APP. 650/2011
NEW INDIA ASSURANCE COMPANY LTD....... Appellant
Through: Mr. K.L. Nandwani, Adv.
versus
SWATI THAKUR & ORS. ..... Respondents
Through Mr. Rajesh Pathak, Adv.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant New India Assurance Company Limited takes
exception to a judgment dated 19.04.2011 passed by the Motor
Accident Claims Tribunal (the Claims Tribunal) whereby a
compensation of `13,52,660/- was awarded in favour of the
Respondents (Swati Thakur, Ram Dhin and Bindu Thakur) for
the death of Ravi Thakur who died in a motor vehicle accident
which occurred on 22.03.2007.
2. On appreciation of evidence, the Claims Tribunal found that the
accident was caused on account of rash and negligent driving of
truck No.HR-38H-3591 by Respondent Farmanul Huq. The
Claims Tribunal held the deceased's income to be `6,000/- per
month; added 50% on account of future prospects; considering
the number of dependents to be 2 deducted one-third towards
personal and living expenses and applied the multiplier of '18'
as per the deceased's age.
3. The compensation awarded is extracted hereunder:-
Sl. Compensation under various heads Awarded by
the Claims
No. Tribunal
1. Loss of Dependency `12,96,000/-
2. Loss to Estate ` 10,000/-
3. Loss of Love & Affection ` 10,000/-
4. Funeral Charges ` 10,000/-
5. Loss of Consortium ` 10,000/-
6. Medical Expenses ` 16,660/-
Total ` 13,52,660/-
4. There is twin challenge to the impugned judgment. First, that
the negligence was not established on the part of Farmanul Huq,
the driver of the truck. Rather, it was a case of contributory
negligence. Secondly, there was no evidence with regard to the
bright future prospects. Thus, the Claims Tribunal erred in
making addition of 50% towards the future prospects.
5. While dealing with the issue of negligence, the Claims Tribunal
held as under:-
".... As per the certified copy of the criminal court
record, chargesheet has been filed against the
respondent no.1. The post mortem report is also filed &
proved on record and as per the postmortem report, the
cause of death is stated to be „road side accident‟ and,
therefore, the court is of the opinion that filing of
chargesheet proves rash and negligence on the part of
the respondent no.1 and post mortem report of the
deceased confirms that the deceased had died because of
this accident. Therefore, the issue is decided by holding
that the petitioner and respondents no.4 & 5 are the legal
heirs of the deceased & the deceased had died in the
road accident on 22.3.07 involving the offending vehicle
being driven by the respondent no.1 in rash and
negligent manner."
6. The driver of the offending vehicle, that is, the Respondent
No.2 did not contest the proceedings. Neither the Appellant
(the Insurer), nor the owner or the driver tried to produce any
evidence to rebut the filing of the criminal case against the
Respondent No.2 for driving truck No. HR-38H-3591 rashly or
negligently and in that process causing death of Ravi Thakur.
7. A perusal of the certified copy of the site plan Ex.PW-1/E on
which much reliance is placed by the Appellant shows that the
deceased was proceeding on his two wheeler on the left side of
the road. The offending truck while overtaking the two wheeler
swerved towards the left and caused accident.
8. It is well settled that in a Claim Petition under Section 166 of
the M.V. Act negligence has to be proved only on touchstone of
preponderance of probability and a Claims Tribunal is required
to take a holistic view while determining negligence in a Claim
Petition. A reference may be made to a judgment of the
Supreme Court Bimla Devi and Ors. v. Himachal Road Transport
Corporation and Ors., (2009) 13 SC 530 where it was held as
under:
"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."
9. In view of above, the Claims Tribunal was justified in drawing
an inference of negligence on the part of Respondent No.2.
10. Turning to the second contention, the Claims Tribunal
examined PW-2 Anusuya Prasad Chamola, an employee of M/s.
Rohan Motors Ltd. He proved the salary certificate Ex.PW-2/A
and other documents with regard to Ravi Kumar's employment.
Said Ravi Kumar was in regular employment and was paying
ESI and provident fund contribution. It is, therefore, established
that the deceased was a young person and was in stable
employment. The Claims Tribunal was, therefore, justified in
making addition of 50% in the deceased's income towards
future prospects.
11. There is no error or infirmity in the impugned judgment. The
Appeal is devoid of any merit; the same is accordingly
dismissed.
12. The compensation awarded to the Claimants shall be released to
them in terms of the order passed by the Claims Tribunal.
13. The statutory deposit of `25,000/- be refunded to the Appellant
Insurance Company.
14. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
JULY 24, 2012
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