Delhi High Court
Mamta vs Satpal & Ors on 16 May, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16th May, 2012
+ MAC.APP. 353/2010
MAMTA ..... Appellant
Through Mr. S.P. Gairola, Advocate
versus
SATPAL & ORS ..... Respondents
Through Ms. Mansi Gupta, Advocate for
the Respondent MCD
+ MAC.APP. 607/2010
MUNICIPAL CORPORATION OF DELHI ..... Appellant
Through Ms. Manjira Das Gupta,
Advocate
versus
MAMTA ..... Respondent
Through Mr. S.P. Gairola, Advocate
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
CM. APPL No.16457/2010 (delay) in MAC APP. No.607/2010
There is a delay of 64 days in filing the Appeal. The ground set
up is that the Appellant could not obtain the copy of the award for
filing the Appeal. For the reasons stated in the application, the delay
is condoned.
The application stands disposed of.
MAC.APP. 353/2010 and MAC.APP. 607/2010
1. These two Appeals (MAC APP.353/2010 and MAC
APP.607/2010) arise out of a judgment dated 25.02.2010 passed
by the Motor Accident Claims Tribunal (the Claims Tribunal) in
MACT Case No.399/2007 whereby while awarding a
compensation of `94,500/- including an interim compensation
of `50,000/-, the Second Respondent MCD was directed to pay
the monthly compensation @ `1750/- till the death of the
Appellant or her re-marriage, whichever is earlier.
2. Both the parties are aggrieved by the judgment. Appellant
Mamta's (hereinafter referred to as the Claimant) plea is that the
compensation should have been granted on lumpsum basis with
addition towards future prospects whereas MCD's (the Second
Respondent) plea is that the Claimant failed to establish
negligence on the part of the driver Satpal (the First
Respondent) of the offending vehicle i.e. truck No.DL-IG-7472.
Thus, the Second Respondent was not liable to pay any
compensation at all. It is stated that in any case, the deceased
was not wearing a helmet at the time of the accident, thus, he
should be held to have contributed to the accident.
3. Thus, the Court has to deal with the issue of negligence as also
the award of just compensation.
NEGLIGENCE:-
4. In the Claim Petition, the Claimants averred that on 13.04.2007
at about 9:30 A.M. the deceased was riding on the pillion seat
of motor cycle No.DL-8S-AF-9239 and the offending truck
No.DL-1G-7472 driven by its driver Satpal (under the
employment of MCD) in a very rash and negligent manner and
in violation of the traffic rules, hit the deceased's motorcycle.
These averments were denied by the driver Satpal. The MCD
failed to file the written statement and its defence was struck
off.
5. During evidence, the Claimant examined Ajit Kumar who
deposed about the manner of the accident. He deposed that on
13.04.2007 at 9:30 AM while riding a motorcycle driven by
him, they reached at Shah Alam Bandh Road before
Jahangirpuri Mor(turn), when the truck No.DL-1G-7472 driven
by its driver Satpal in a rash and negligent manner struck
against the motorcycle with great force. During cross-
examination, the suggestion was given to this witness that he
was trying to overtake the truck and in the meanwhile a TSR
came from the opposite direction and the motor cycle collided
against the TSR. Satpal (the first Respondent), who was driver
of the offending truck did not depose about the hitting of the
two wheeler by the TSR in his Affidavit Ex.R1W1. In view of
the contradictory stand taken and any suggestion not being
given to PW-2 in his testimony on this aspect, it would be
difficult to rely on the driver's testimony. Moreover, the
number of TSR has not been mentioned in the suggestion given
to PW-2. PW-2's testimony is supported by registration of FIR
No.212/2007 in Police Station Adarsh Nagar and filing of a
criminal case against the First Respondent.
6. It is well settled that in a Petition under Section 166 of the
Motor Vehicles Act, negligence is required to be proved on the
touchstone of preponderance of probability which has been
done in this case. (Bimla Devi and Ors. v. Himachal Road
Transport Corporation and Ors., (2009) 13 SC 530, and
Parmeshwari Devi v. Amir Chand and Ors., (2011) 11 SCC
635).
7. As far as the plea of contributory negligence on account of the
deceased not wearing a helmet is concerned, even if it is
assumed that the deceased was not wearing a helmet, he cannot
be said to have contributed to the accident. Reference is made
to a Division Bench judgment of M.P. High Court in Miss.
Vidya Soni & Anr. v. Pushpesh Dwivedi & Ors., AIR 2008 MP
319 wherein it was held that if a motorcyclist did not wear a
helmet at the time of the accident, he cannot be said to have
contributed to the accident.
8. In the circumstances, the deceased cannot be held guilty of
contributory negligence.
QUANTUM OF COMPENSATION:-
9. In this case, the Claims Tribunal awarded a compensation to be
paid on monthly basis on the basis of an earlier judgment of this
Court in United India Insurance Company Limited v. Reeta
Devi, decided on 04.11.2008 by V.B. Gupta, J.
10. The view taken in Reeta Devi (supra) was disapproved by the
Supreme Court in Special Leave Petition (Civil) No.15796/2009
on dated 22.02.2010 whereby the order of granting monthly
compensation was set aside and it was held that lumpsum
compensation should be awarded in the motor accident cases.
11. The Claimant had claimed the deceased's income to be `5,000/-
per month by doing a private service in United Pest Control.
No proof of income or employment with United Pest Control
was proved on record. Rather, a suggestion was given to the
Claimant that the certificate obtained from United Pest Control
was forged and fabricated. In the circumstances, the
compensation can be awarded only on the basis of minimum
wages of an unskilled worker on the date of the accident. The
same were `3470/- per month. In the absence of any evidence
as to the future prospects, the Claimant was not entitled to any
addition. Since the Appellant was the only dependent on the
deceased, there would be deduction of one-half towards the
personal and living expenses of the deceased. The loss of
dependency thus comes to `3,33,120/- (3470/- x 1/2 x 12 x 16).
12. I would further make an award of `25,000/- towards loss of
love and affection and `10,000/- each towards loss of
consortium, loss to estate and funeral expenses.
13. The overall compensation comes to `3,88,120/- (including the
interim compensation of `50,000/- already paid).
14. The compensation awarded shall carry interest @ 7.5% per
annum from the date of filing of the petition till the date its
deposit in the name of the Appellant in UCO Bank, Delhi High
Court Branch, New Delhi.
15. The Second Respondent MCD is directed to deposit the
enhanced compensation along with interest in the abovesaid
Bank within six weeks.
16. In view of the above discussion MAC APP.353/2010 is allowed
and MAC APP.607/2010 filed by MCD is dismissed.
17. The statutory amount of `25,000/- shall be refunded to the
MCD after depositing the compensation awarded by this Court.
(G.P. MITTAL)
JUDGE
MAY 16, 2012
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