Delhi High Court
New India Assurance Company Ltd. vs Rajesh Kumar & Ors. on 19 October, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 19th October, 2012
+ MAC.APP. 410/2012
NEW INDIA ASSURANCE COMPANY LTD. ..... Appellant
Through Mr. Abhishek Kumar, Adv.
Mr. Punit Vinay, Adv.
versus
RAJESH KUMAR & ORS. ..... Respondents
Through Mr. Peeyush Sharma, Adv.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant New India Assurance Company Limited impugns a
judgment dated 04.02.2012 passed by the Motor Accident Claims
Tribunal (the Claims Tribunal) in Case No.56/2010 whereby a
compensation of `7,09,568/- was awarded in favour of the legal
representatives of Ashish Kumar, who died in a motor vehicle accident
which occurred in the early hours of 06.11.2009.
2. On the night intervening 05.11.2009 and 06.11.2009 at about 3:30 A.M.
the deceased Ashish Kumar along with his father Rajesh Kumar and one
Kamal Rajput was returning from DDU hospital on a two wheeler
No.DL-4S-BM-4070. The two wheeler was being driven by Kamal
Rajput. When they reached the traffic signal at Pankha road and were
negotiating a right turn, a truck No.RJ-31G-4278, which was driven by
Leelu Singh (Respondent No.3 herein) in a rash and negligent manner
travelled to the side of the two wheeler and rammed into it. On account of
the forceful impact, all the three persons fell down. Respondent No.1
Rajesh Kumar survived with grievous injuries, while the injuries in the
case of Ashish Kumar proved fatal.
3. On appreciation of evidence, the Claims Tribunal found that the accident
was caused on account of rash and negligent driving of the offending
vehicle by Respondent Leelu Singh.
4. Deceased Ashish Kumar was a bachelor and was a Matriculate. It was
claimed that he was earning `6,000/- per month. In the absence of any
evidence with regard to his income, the Claims Tribunal took the
minimum wages of a Matriculate; added 50% towards inflation; deducted
one-half towards personal and living expenses and applied the multiplier
of 14 to compute the loss of dependency. The compensation awarded is
tabulated hereunder:-
Sl. Compensation under various heads Awarded by the
Claims Tribunal
No.
1. Loss of Dependency `5,54,568/-
2. Funeral Expenses ` 50,000/-
3. Loss to Estate ` 5,000/-
4. Loss of Love and Affection ` 1,00,000/-
Total ` 7,09,568/-
5. The following contentions are raised on behalf of the Appellant Insurance
Company:-
(i) Since three persons were travelling on a two wheeler in violation of
the provision of the Motor Vehicles Act, 1988 (the Act), there was
contributory negligence on the part of the deceased. The
compensation is, therefore, liable to be deducted towards
contributory negligence.
(ii) An addition of 50% towards inflation was not justified. At the
most, there could be addition of 30%.
(iii) The compensation of `50,000/- awarded towards funeral expenses
and `1,00,000/- towards loss of love and affection is excessive and
exorbitant.
NEGLIGENCE
6. Respondent No.1 Rajesh Kumar who survived the injuries in the accident
filed his Affidavit Ex.PW-1/A by evidence testifying about the manner of
the accident. He deposed that he along with his son Ashish Kumar (the
deceased) and one Kamal Rajput was returning from DDU hospital on a
two wheeler No.DL-4S-BM-4070. The two wheeler was being driven by
Kamal Rajput. When they reached the traffic point at Pankha road and the
two wheeler driver was taking a right turn after giving proper indication,
a truck No.RJ-31G-4278, which was being driven by Respondent Leelu
Singh in a rash and negligent manner came from Uttam Nagar side. The
truck driver took his truck towards the side of the two wheeler and hit it
with great force. On account of the forceful impact, they fell down and
were dragged upto a considerable distance. In cross-examination on
behalf of the owner and driver of the truck it was suggested to PW-1 that
the accident was caused as the two wheeler driver became nervous. It
was, however, not disputed that the truck had not travelled to the side of
the two wheeler and rammed into it.
7. Leelu Singh, driver of the truck also filed his own Affidavit Ex.R1W1/A
and stated that the accident was caused on account of the sole negligence
on the part of the two wheeler driver. The main thrust of Respondent
Leelu Singh was on the fact that there were three persons riding on the
two wheeler in violation of the provisions of the M.V. Act. The exact
manner of the accident was not disputed.
8. There is no presumption that there would be negligence on the part of two
wheeler driver, if three persons are riding on a two wheeler. The
negligence has to be established as a fact.
9. In the instant case, as stated earlier, the manner of the accident as deposed
by PW-1 Rajesh Kuamr was not seriously challenged. Thus, from PW-1's
testimony coupled with the registration of a criminal case against the
truck driver under Section 279/304-A IPC, an inference of culpable
negligence can be drawn against Respondent Leelu Singh.
10. Thus, the finding of negligence, reached by the Claims Tribunal cannot
be faulted.
QUANTUM
11. During inquiry before the Claims Tribunal it was claimed that the
deceased Ashish Kumar was earning `6,000/- per month by assisting his
father. No reliable evidence was produced with regard to his income. The
Claims Tribunal took the minimum wages of a Matriculate to compute
the loss of dependency; added 50% in the assumed income on account of
inflation.
12. As per Santosh Devi v. National Insurance Company Ltd. & Ors., 2012
(4) SCALE 559; in the absence of any evidence with regard to future
prospects, there could be an addition of only 30% towards inflation in
case the victim was a self-employed person. Thus, the loss of dependency
comes to `4,80,589/- (4401/- + 30% x 1/2 x 12 x 14).
13. The Claims Tribunal awarded a sum of `50,000/- towards funeral
expense. In Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation &
Anr., (2009) 6 SCC 121 it was laid down that actual expenditure on
funeral expenses should be awarded in fatal accident cases. No evidence
was led with regard to expenditure on last rites. In the circumstances, it
would be appropriate to award only a sum of `10,000/- under this head.
14. The Claims Tribunal awarded a sum of `1,00,000/- towards loss of love
and affection. Loss of love and affection can never be measured in terms
of money. Thus, uniformity has to be adopted by the Courts while
granting non-pecuniary damages. The Supreme Court in Sunil Sharma v.
Bachitar Singh (2011) 11 SCC 425 and in Baby Radhika Gupta v.
Oriental Insurance Company Limited (2009) 17 SCC 627 granted only `
25,000/- (in total to all the claimants) under the head of loss of love and
affection. Thus, I would reduce the compensation under this head to `
25,000/- only.
15. The loss to estate awarded by the Claims Tribunal as `5,000/- is
enhanced to `10,000/-.
16. Thus, the overall compensation comes to `5,25,589/-.
17. In view of the foregoing discussion, the Appeal is allowed. The
compensation stands reduced from `7,09,568/- to ` 5,25,589/-.
18. The excess amount of `1,83,979/- along with proportionate interest and
the interest accrued, if any, during the pendency of the Appeal shall be
refunded to the Appellant Insurance Company.
19. The statutory deposit of `25,000/- be refunded to the Appellant Insurance
Company.
20. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
OCTOBER 19, 2012
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