Oriental Insurance Co Ltd vs Gurvinder Singh & Ors
2012 Latest Caselaw 3066 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 9th May, 2012
+        MAC.APP. 442/2010

         ORIENTAL INSURANCE CO LTD            ..... Appellant
                         Through: Mr. Pradeep Gaur, Adv.
                                  Mr. Shashank Sharma, Adv.
                                  Mr. Amit Gaur, Advocate
                  versus

         GURVINDER SINGH & ORS             ..... Respondents
                      Through: Mr. Gurmit Singh, Advocate for
                               R-1 and R-2

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

                           JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appeal is for reduction of compensation of `7,74,368/-

awarded for the death of Jaspreet Singh who died in a motor accident which occurred on 19.08.2009.

2. During inquiry before the Motor Accident Claims Tribunal (the Claims Tribunal) evidence was led to show that the accident was caused on account of rash and negligent driving of bus No.DL-1P-8506 by Respondent No.1 Kishan Pal. Evidence was also led that the deceased was a Matriculate and was working as a Mechanic with his uncle PW-2 Parvinder Singh.

3. The Claims Tribunal reached the finding that the accident was

caused on account of rash and negligent driving of the earlier said bus by Kishan Pal, Respondent No.3 herein. The Claims Tribunal declined to believe PW-2's version that the deceased was a Mechanic or that he was earning `5,000/- per month. The Claims Tribunal, therefore, took the minimum wages of a Matriculate, added 50% towards inflation, deducted one-third towards personal and living expenses instead of one-half on the ground that the deceased's father was also dependent as he (the deceased's father) was not keeping good health. The overall compensation of `7,74,368/- was granted.

4. Following contentions are raised on behalf of the Appellant Insurance Company:-

(i) There was contradictory version in the FIR and in PW-2's testimony before the Claims Tribunal. Thus, the negligence was not proved. In any case, it was a case of contributory negligence.

(ii) The compensation awarded was exorbitant and excessive as one-half ought to have been deducted towards the personal and living expenses in the absence of any evidence. The compensation ought to have been awarded on the notional income of `15,000/- per annum.

5. On the other hand, the learned Counsel for the Respondents No.1 and 2 supported the judgment and urges that the compensation awarded was just and reasonable. It was urged

that the compensation awarded towards funeral expenses and towards the loss of love and affection was on the lower side.

NEGLIGENCE:-

6. It is true that the Claims Tribunal noticed the contradiction in the FIR and in PW-2's testimony, on whose statement the FIR was allegedly recorded on the factum as to who was driving the two wheeler at the time of the accident. The attention of PW-2 to the alleged previous statement, on the basis of which the FIR was recorded was not drawn and he was not confronted with his previous statement. In the circumstances, PW-2's testimony that he (PW-2) was driving the two wheeler at the time of the accident and that the accident was caused on account of rash and negligent driving of bus No.DL-1P-8506 by Respondent No.3 was rightly believed by the Claims Tribunal in the absence of any rebuttal to it by the driver and the owner of the vehicle. Hence, I affirm the finding on negligence.

QUANTUM OF COMPENSATION

7. The deceased was aged only 17½ years. He was a Matriculate.

No documentary evidence was produced that the deceased obtained any technical qualification or learnt the job of a mechanic. The Claims Tribunal rightly disbelieved the Claimants' case that the deceased was working as a Mechanic in the shop of PW-2 and was earning `5,000/- per month. At the same time, it has to be borne in mind that although the deceased

was minor but was aged 17½ years. He had the potential to earn at least minimum wages of a Matriculate and the compensation ought to have been awarded on the basis of the minimum wages of a Matriculate. No increase towards the future prospects or inflation could have been given in the absence of any reliable evidence as to the job undertaken by the deceased.

8. The Claims Tribunal rightly deducted one-third towards the personal and living expenses of the deceased considering that he had aged mother and a non-working ailing father.

9. In view of the above discussion, the loss of dependency comes to `6,33,744/- (`4401/- x 12 x 2/3 x 18).

10. The overall compensation is re-assessed as under:-

Sl. Compensation under Awarded by Awarded by various heads the Claims this Court No. Tribunal

1. Loss of Dependency `7,39,368/- `6,33,744/-

          2.         Loss to Estate                ` 10,000/-      ` 10,000/-

          3.         Funeral Expenses              ` 5,000/-      ` 10,000/-

          4.         Loss of Love & Affection     ` 20,000/-      ` 25,000/-

                                        Total    ` 7,74,368/-    ` 6,78,744/-

11. The compensation of `6,78,744/- including the compensation, if

any, already released shall be disbursed to Respondents No.1 and 2 in terms of the order passed by the Claims Tribunal.

12. The excess amount of `95,624/- along with the proportionate interest @ 7.5 % per annum, and the interest accrued, if any, during the pendency of the Appeal shall be refunded to the Appellant Insurance Company.

13. The statutory amount of `25,000/- shall be refunded to the Appellant Insurance Company.

14. The Appeal is allowed in above terms.

(G.P. MITTAL) JUDGE MAY 09, 2012 vk