Delhi High Court
Iffco Tokio General Insurance ... vs Smt. Sushma Dua & Ors. on 31 October, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 31st October, 2012
+ MAC. APP. 384/2010
IFFCO TOKIO GENERAL INSURANCE COMPANY LTD.. Appellant
Through: Ms. Suman Bagga, Adv.
versus
SMT. SUSHMA DUA & ORS. ..... Respondents
Through: Mr. Navneet Goyal, Adv. with
Ms. Suman N. Rawat, Adv.
+ MAC. APP. 1177/2011
SMT. SUSHMA DUA & ORS. ........ Appellants
Through: Mr. Navneet Goyal, Adv. with
Ms. Suman N. Rawat, Adv.
versus
IFFCO TOKIO GENERAL INSURANCE COMPANY LTD
....... Respondent
Through: Ms. Suman Bagga, Adv.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These two Appeals arise out of a common judgment dated 26.04.2010
passed by the Motor Accident Claims Tribunal (the Claims Tribunal)
whereby a compensation of `20,10,000/- was awarded in favour of the
legal representatives of the deceased Ashok Kumar who died in a motor
vehicle accident which occurred on 18.06.2006.
2. MAC APP.384/2010 has been preferred by IFFCO TOKIO General
Insurance Company Limited, the Insurer of the vehicle No.DL-4C-AD-
1402, a Tavera car involved in the accident, on the ground that the
Claimants failed to prove the negligence on the part of Ajay Singh, driver
of the Tavera car and that the compensation awarded is excessive and
exorbitant.
3. Cross Appeal being MAC APP.1177/2011 has been filed by the legal
representatives of deceased Ashok Kumar stating that the compensation
awarded is on the lower side.
4. For the sake of convenience the Appellant in MAC APP.384/2010 shall
be referred to as the Insurer and the Appellants in Cross Appeal being
MAC APP.1177/2011 shall be referred to as the Claimants.
NEGLIGENCE
5. Immediately after the accident DD No.34 dated 18.10.2006 was recorded
in Police Station Roorkee by Subhash Chand, one of the occupants of
Tavera car No. DL-4C-AD-1402. In the DD entry, it was stated that on
the fateful day, i.e. on 18.10.2006 at about 3:00 A.M. his brother Ashok
Kumar (the deceased) and his friend Ajay Singh were returning from
Haridwar to Delhi. The car was being driven by the driver Prince Kumar
(Respondent No.6). His brother Ashok Kumar was sitting beside the
driver's seat. In the meanwhile, a cow suddenly appeared before the car.
The driver hit the car against a truck No.UP-10G-3416 which was parked
on the side of the road. It was stated in the DD entry by Subhash Chand
that his brother Ashok Kumar suffered grievous injuries and he died at
the spot.
6. The Claimants also examined PW-2 Siya Ram Mishra who also deposed
about the collision of the car with the truck which was parked on the side
of the road (on the pavement).
7. It is urged by the learned counsel for the Appellant that the accident
occurred because of the appearance of a cow on the road and thus there
was no negligence on the part of the car driver. I would not agree. It has
to be borne in mind that the car was being driven at 3:00 AM, i.e. at the
dead of night when visibility is very poor. Driver of a vehicle is expected
to drive it at a reasonable speed so as stop it in case of any emergency.
From the DD entry as well as from PW-2's testimony it is evident that the
driver was not in control of the car and that is why it struck against the
truck which was properly parked.
8. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and
Ors., (2009) 13 SC 530, while holding that in a petition under Section 166
of the Act for award of compensation, the negligence has to be proved on
the touchstone of preponderance of probability, in para 15, it was
observed as under:-
"15. In a situation of this nature, the Tribunal has rightly taken a
holistic view of the matter. It was necessary to be borne in mind
that strict proof of an accident caused by a particular bus in a
particular manner may not be possible to be done by the claimants.
The claimants were merely to establish their case on the
touchstone of preponderance of probability. The standard of proof
beyond reasonable doubt could not have been applied. For the
said purpose, the High Court should have taken into consideration
the respective stories set forth by both the parties."
9. The observations of the Supreme Court in Bimla Devi were referred with
approval in later judgment in Parmeshwari Devi v. Amir Chand and Ors.,
(2011) 11 SCC 635.
10. Thus, culpable negligence on the part of driver of car No.DL-4C-AD-
1402 was sufficiently established.
QUANTUM OF COMPENATION
11. During inquiry before the Claims Tribunal it was claimed that the
deceased was in business in the name and style of M/s. New Cheap Store,
Shop No.14, Guru Nanak Market, R Block, Greater Kailash-II, New
Delhi. The deceased's widow Smt. Sushma Dua as PW-1 testified that
her husband (the deceased) was earning `25,000/- per month. The income
tax return (ITR) for Assessment Years 2004-05 and 2005-06 were proved
on record as Exs.PW-1/F-1 and PW-1/F-5 wherein the deceased returned
the income of `79,435/- and `76,204/- respectively. The ITR for the
Assessment year 2006-07, that is upto the period 31.03.2006 was proved
as Ex.PW-1/F-9 wherein the deceased's income was shown to be
`1,15,628/- from the business and `41,850/- from part time tuition. This
return was filed only on 20.03.2007. Deceased Ashok Kumar admittedly
was not having any income from the part time tuition. It is evident that
the ITR was filed to claim higher compensation.
12. The only ground of challenge is that the Claims Tribunal should not have
considered the Income Tax Return for the A.Y.2006-07 which was filed
on 20.03.2007, that is, after five months two days of the accident as the
accident occurred on 18.10.2006. Reliance is placed on V. Subbulakshmi
& Ors. v. S. Lakshmi & Anr., 2008 ACJ 936 where the accident occurred
on 07.05.1997 and the Income Tax Return filed on 23.06.1997 was not
taken into consideration.
13. No other evidence was produced to show that the deceased had an income
of `1,15,628/- from business during the relevant period. The fact that
income from tuition was added in the income tax return Ex.PW1/P-9
shows that the claimant wanted to claim higher compensation. In view of
V. Subbulaxmi it would not be possible to rely on such an ITR. Thus, the
Claims Tribunal committed error in assuming the deceased's income to
be `1,50,000/- on the date of the accident.
14. The deceased's income can be taken only on the two previous ITRs
which comes to `79,435/- + 76,204/- ÷ 2 = 77,819/-. In the absence of
any evidence with regard to future prospects, the Claimants were entitled
to an addition of 30% towards future prospects/ inflation on the strength
of the report of the Supreme Court in Santosh Devi v. National Insurance
Company Ltd. & Ors., 2012 (4) SCALE 559.
15. The loss of dependency comes to `9,86,355/- (77819/- + 30% x 3/4 x 13)
as against a sum of `19,50,000/- awarded by the Claims Tribunal.
16. On adding a sum of `60,000/- as awarded by the Claims Tribunal towards
non-pecuniary damages, the overall compensation comes to `10,46,355/-.
17. The compensation awarded shall carry interest @ 8% per annum from the
date of filing of the Petition till its payment, as awarded by the Claims
Tribunal.
18. By an order dated 05.07.2010, the execution of the impugned judgment
was stayed subject to deposit of 50% of the award amount and a sum of
`10 lacs was ordered to be released in favour of the Claimants by order
dated 20.08.2010.
19. The Appellant Insurance Company is directed to deposit the balance
amount along with proportionate interest within six weeks in UCO Bank,
Delhi High Court Branch, New Delhi in the name of the First Responent
(the Claimant).
20. The amount of compensation shall be disbursed/held in fixed deposit in
terms and in proportion as directed by the Claims Tribunal.
21. In view of the above discussion, MAC APP.384/2010 is allowed and
MAC APP.1177/2011 (Cross Appeal) is hereby dismissed.
22. The statutory deposit of `25,000/- shall be refunded to the Appellant
Insurance Company.
23. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
OCTOBER 31, 2012
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