Delhi High Court
Santosh vs Ravi Kumar & Ors on 30 July, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 30th July, 2012
+ MAC. APP. 206/2010
SANTOSH ....... Appellant
Through: Mr. S.K. Pandey, Adv.
versus
RAVI KUMAR & ORS. ..... Respondents
Through Mr. D.K. Sharma, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. This Appeal is directed against a judgment dated 30.01.2010
passed by the Motor Accident Claims Tribunal (the Claims
Tribunal) whereby a Claim Petition filed under Section 166 of
the Motor Vehicles Act, 1988 (the Act) preferred by the
Appellant was dismissed on the ground that the involvement of
vehicle No.DL-6SAA-2115 and negligence on the part of its
driver Ravi Kumar, the First Respondent was not established.
2. By an order dated 22.11.2011 an application for additional
evidence filed by the Appellant was allowed and the Claims
Tribunal was directed to examine Pawan Kumar who was cited
as a prosecution witness in the criminal case registered in
respect of the accident.
3. The additional evidence has been recorded by the Claims
Tribunal and has been transmitted to this Court.
4. This Court is to determine whether the accident was caused by
the two wheeler No.DL-6SAA-2115 being driven in a rash and
negligent manner by Respondent Ravi Kumar. If, the question
is answered in affirmative, this Court will have to determine the
quantum of compensation.
NEGLIGENCE :-
5. During inquiry before the Claims Tribunal, the Appellant
examined Dharambir Singh PW-2 who claimed himself to be an
eye witness to the accident. The Claims Tribunal rejected his
testimony mainly on the ground that his name was not
mentioned as a prosecution witness in the charge sheet. The
Claims Tribunal observed that Pawan Kumar, who was cited as
an eye witness was not examined by the Claims Tribunal. It
was further held that as per DD entry recorded immediately
after the accident, the information made available to the police
was that the accident had been caused by a tempo and not a two
wheeler. Thus, the Claims Tribunal concluded that the
Appellant failed to establish the involvement of the two wheeler
No.DL-6SAA-2115 and negligence on the part of its driver
Ravi Kumar, the First Respondent.
6. PW-2 Dharambir Singh filed his Affidavit Ex.PW-2/A
testifying that on 22.06.2007 at about 9:55 P.M. the accident
was caused by rash and negligent driving by the driver of the
two wheeler No.DL-6SAA-2115. He deposed that after the
accident, some people gathered at the spot. One of them made a
call to the police. In his further examination on 31.01.2012, the
witness deposed that the accident took place while the two
wheeler driver was overtaking a tempo from the wrong side. He
was cross-examined at length by the counsel for the Insurance
Company. He deposed that he would not be in a position to
identify the driver of the offending two wheeler.
7. PW-4 Pawan Kumar, another eye witness filed his Affidavit
Ex.PW-4/A testifying that on 27.06.2007 at about 9:55 P.M. he
was coming from village Barwala and was proceeding towards
his residence in Ishwar Colony, Bawana. When he reached near
Pooth Khurd, he noticed a motor cycle No.DL-6SAA-2115 was
ahead of him and proceeding towards village Bawana. He
further stated that the motorcyclist was driving the two wheeler
rashly and negligently and struck against a person. On account
of the forceful impact, the said person fell down and suffered
injuries. He deposed that he left for some personal work and
gave his name and address to the people who had gathered
there. He testified that ASI Jai Kumar Maan (IO of the case)
later on visited his house and he narrated him the manner in
which the accident took place.
8. ASI Jai Kumar Maan was examined as PW-5. He investigated
the case, recorded statement of Dharambir Singh and Pawan
Kumar, eye witnesses of the accident. He also served a notice
under Section 133 of the Act upon the owner Ravi Kumar. Ravi
Kumar was later on identified by the eye witnesses and was
arrested in this case.
9. Learned counsel for the Respondent Insurance Company argues
that in the DD entry it is recorded that one tempo was involved
in causing injuries to the deceased. Thus, the involvement of
the two wheeler in the accident is ruled out.
10. PW-5 deposed that when he reached the spot no tempo was
found present. PW-2 and 4 were categorical that the accident
took place while the motorcyclist was overtaking a tempo from
the wrong side. The names of the persons who disclosed that
the tempo was involved in the accident have not surfaced. Ravi
Kumar, the First Respondent, who is the owner of the motor
cycle though denied negligence on his part but did not enter the
witness box to rebut PW-2 and PW-4's testimony. He has not
come forward with any explanation as to why he was falsely
involved in the accident.
11. The Respondent Insurance Company has not alleged any
collusion between the Appellant and the First Respondent. In a
Claim Petition under Section 166 of the M.V. Act, negligence is
required to be proved by preponderance of probability. In the
absence of any rebuttal to PW-2 and PW-4's testimony, I am
inclined to accept their version to hold that the accident was
caused on account of rash and negligent driving of motor cycle
No.DL-6SAA-2115 by the First Respondent.
QUANTUM:-
12. The deceased Inder Jeet Singh was employed in DTC. In order
to prove the deceased's income, the Appellant examined PW-3
Pyare Lal, Accountant in DTC. He deposed that the deceased
was a permanent employee of DTC and was getting a salary of
`12,762/- at the time of his death. The Salary Certificate was
proved as Ex.PW-3/A. The deceased's date of birth was
06.07.1962. Thus, he was aged a little less than 45 years on the
date of the accident.
13. This Claim Petition has been filed only by the deceased's
widow. The deceased was survived by his widow, the
Appellant, two sons and a daughter. An Affidavit was filed that
the daughter is already married and well settled and that the two
sons are also well settled.
14. During hearing of the Appeal, it was stated by the learned
counsel for the Appellant that a no objection was filed by other
legal heirs.
15. Considering the age of the deceased to be a little less than 45
years, the Appellant would be entitled to increase of 30%
towards future prospects in the deceased's income to compute
the loss of dependency. Since there was only one dependent,
the deduction towards the personal and living expenses would
be one-half. Applying the multiplier of '14' the loss of
dependency would come to ` 13,57,210/- (12,762/- x 12 -
4,000/- (tax) + 30% x 1/2 x 14).
16. On adding a sum of `25,000/- towards loss of love and
affection, `10,000/- each towards loss of consortium, funeral
expenses and loss to estate, the overall compensation comes to
`14,12,210/-.
17. The compensation awarded shall carry interest @ 7.5% per
annum from the date of filing of the Petition till its payment.
18. Respondent Insurance Company is directed to deposit the
compensation in the name of the Appellant along with interest
within six weeks in UCO Bank, Delhi High Court, New Delhi.
19. 75% of the compensation along with proportionate interest shall
be held in fixed deposit for a period of two years, four years, six
years, eight years and ten years in equal proportion. Rest 25%
along with proportionate interest shall be released to her on
deposit.
20. The Appeal is allowed in above terms.
21. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
JULY 30, 2012/ vk
