Delhi High Court
New India Assurance Co Ltd vs Sunita & Ors. on 30 March, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 30th March, 2012
+ MAC.APP. 1043/2011
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr. Sameer Nandwani, Adv.
versus
SUNITA & ORS. ..... Respondents
Through: Mr. Amit Kumar Pandey,
Advocate for the Respondents
No.1 to 3.
+ MAC.APP. 360/2012
SUNITA & ORS. ..... Appellants
Through: Mr. Amit Kumar Pandey, Adv.
versus
NEW INDIA ASSURANCE CO LTD ..... Respondent
Through: Mr. Sameer Nandwani, Adv.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These are two Cross Appeals. MAC APP.1043/2011 is an
Appeal filed by the New India Assurance Company Limited for
reduction of compensation of ` 11,19,200/- awarded for the
death of Suresh Kumar who died in an accident which occurred
on 09.04.2006.
2. MAC APP.360/2012 is preferred by the legal representatives of
deceased Suresh Kumar for enhancement of the compensation.
3. For the sake of convenience, New India Assurance Company
Limited shall be referred to as the Insurance Company and the
Appellants in the Cross Appeal shall be referred to as the
Claimants.
4. The Motor Accident Claims Tribunal (the Claims Tribunal) by
the impugned judgment held that the accident was caused on
account of rash and negligent driving of the driver of the
offending vehicle bearing registration No.HR-63-D-4550. It
was held that the deceased Suresh Kumar was in permanent
employment with M/s. Tarun Traders, Z-179, WHS, Loha
Mandi, Naraina, New Delhi and was getting a salary of `
7,000/- per month.
5. The Claims Tribunal made an addition of 30% towards future
prospects considering that the deceased was aged about 42
years, deducted one-third towards his personal and living
expenses (considering the number of dependents to be three)
and adopted a multiplier of '14' to compute the loss of
dependency as ` 10,19,200/-.
6. The contentions raised on behalf of the Insurance Company
are:-
(i) That there was contributory negligence on the part of the
truck driver going ahead of the tempo bearing registration
No.HR-63-D-450 as the truck stopped all of a sudden.
The Claims Tribunal ought to have apportioned the
liability amongst the owners of the two vehicles, and
(ii) The Claimants were not entitled to any future prospects
as the deceased was not in govt. service.
7. On the other hand, it is urged by the learned counsel for the
Claimants that the deceased had five dependants including his
mother who died during the pendency of the Claim Petition in
December, 2008, thus, on the ratio in Sarla Verma (Smt.) &
Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121,
the Claims Tribunal ought to have deducted one-fourth of the
deceased's income towards his personal and living expenses
instead of one-third.
8. In order to prove the negligence, the Claimants examined PW-4
Om Prakash. The witness testified that on 09.04.2006 at about
3:00 AM he was returning home after attending a wedding. He
was riding on a two wheeler No.DL-4SV-6996 as a pillion
rider. When they reached near the Metro Pillar No.775 main
Najafgarh Road, he noticed one Tata 407 bearing registration
No.HR-63-D-4550 going ahead of his two wheeler. The said
vehicle was being driven very negligently and at a high speed
by its driver. The Tata 407 hit against another truck going
ahead with great force. On account of the forceful impact Tata
407 overturned and the goods supplier Suresh Kumar and two
other persons sitting with the driver were injured. In cross-
examination on behalf of the Appellant Insurance Company,
PW-4 deposed that the police recorded his statement regarding
the accident. He denied the suggestion that he was not present
at the spot at the time of the accident. Nothing was brought in
cross-examination of this witness to suggest any negligence on
the part of the truck driver. Therefore, it cannot be said that
there was any negligence whatsoever on the part of the truck
which was going ahead.
9. Assuming for the sake of argument that there was some
negligence on the part of the truck driver even than it was not a
case of contributory negligence but of a composite negligence.
10. As per T.O. Anthony v. Karvarnan & Ors., (2008) 3 SCC 748 a
victim can chose to sue all or any of the joint tortfeasors in case
of composite negligence.
11. Finding on negligence on the part of the driver of the offending
vehicle is well reasoned and is on the basis of material produced
by the Claimants. The same cannot be faulted.
12. With regard to proof of future prospects, the Claimants
examined Raj Kumar Aggarwal PW-1, Proprietor of M/s. Tarun
Traders. From his testimony, the Claims Tribunal concluded
that the deceased was in permanent employment and the salary
of the deceased was being increased @ ` 1,000/- per month
annually. In my view, this was sufficient evidence to give
addition of 30% towards the future prospects; appropriate to the
deceased's age.
13. As far as deduction towards the personal and living expenses is
concerned, Smt. Nando Devi, the deceased's mother was alive
at the time of the accident. She was one of the Claimants as
Petitioner No.5. Her name was ordered to be deleted from the
array of parties as she had expired in December, 2008. Thus,
even if deceased's father is not taken to be financially
dependent, the number of dependents being four, deduction of
one-fourth was required to be made towards the personal and
living expenses instead of one-third done by the Claims
Tribunal as the dependency was to be seen on the date of the
accident. The loss of dependency as per the number of
dependents would come to ` 11,46,600/- (7,000/- + 30% x 12 x
3/4 x 14).
14. The Claims Tribunal awarded a sum of `1,00,000/- towards
non-pecuniary heads which has not been disputed. Thus, the
overall compensation comes to ` 12,46,600/- (` 11,46,600/- +
1,00,000).
15. No other contention has been raised. The overall compensation
is consequently increased from ` 11,19,200/- to ` 12,46,600/-.
16. The enhanced compensation of ` 1,27,400/- shall carry interest
@ 7.5% per annum as awarded by the Claims Tribunal to be
deposited within six weeks with the Registrar General of this
Court.
17. The enhanced compensation shall enure for the benefit of the
second and the third Respondent in equal shares and shall be
held in fixed deposit in UCO Bank, Delhi High Court, New
Delhi in their names till they attain the age of 21 years. They
shall be entitled to quarterly interest through their mother, the
first Respondent.
18. MAC APP.1043/2011 filed by the Insurance Company is
dismissed and MAC APP.360/2012 filed by the Claimants is
allowed in above terms.
19. Pending applications also stand disposed of.
(G.P. MITTAL)
JUDGE
MARCH 30, 2012
vk
