Delhi High Court
National Insurance Company Ltd. vs Asha Thakral & Ors. on 27 September, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 27th September, 2012
+ MAC.APP. 1018/2011
NATIONAL INSURANCE COMPANY LTD. ...... Appellant
Through: Ms. Shantha Devi Raman, Adv.
versus
ASHA THAKRAL & ORS. ..... Respondents
Through: Ms. Manjeet Chawla, Adv. for R-1 to
R-4.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for reduction of compensation of `27,15,100/- awarded by
the Motor Accident Claims Tribunal (the Claims Tribunal) for the death
of Pradeep Thakral, aged 34 years who died in a motor vehicle accident
which occurred on 10.04.2008.
2. On appreciation of evidence, the Claims Tribunal found that the accident
was caused on account of rash and negligent driving of Maruti Car
No.DL-3C-AG-4095 by Respondent No.1 which collided against the two
wheeler driven by the deceased. The Claims Tribunal found that the
deceased's income of `11,968/- was established; it made an addition of
50% towards future prospects; deducted one-fourth towards the personal
and living expenses and applied the multiplier of 16 to compute the loss
of dependency. The Claims Tribunal further awarded a sum of
`1,00,000/- towards loss of love and affection and `10,000/- each
towards loss of consortium, funeral expenses and loss to estate.
3. The following contentions are raised on behalf of the Appellant:-
(1) The deceased was riding on a motor cycle No.DL-7SAZ-2725 with
two persons on the pillion. The deceased, therefore, himself
contributed to the accident.
(2) The salary of the deceased was wrongly taken by the Claims
Tribunal. The amount of `4065/- reflected in the salary certificate
was towards the arrears for the previous month. The said sum was,
therefore, required to be excluded. A sum of `1598/- was being
paid towards the conveyance allowance. This being incidental to
employment was not to be taken into consideration to compute the
loss of dependency.
(3) The compensation of `1,00,000/- awarded towards the loss of love
and affection is on the higher side.
4. On the other hand, learned counsel for the Claimants contends that in
view of the unchallenged testimony of PW Nishant Singh, it was
established that the accident was caused on account of rash and negligent
driving of Maruti Car driver. It is stated that the compensation awarded
is just and reasonable.
NEGLIGENCE:-
5. While dealing with the issue of negligence, the Claims Tribunal held as
under:-
"15. In the instant case, from the testimony of Ramesh Kumar and
Nishant Singh, the petitioners in petition No. 548/10 and 591/10, it
is proved that the respondent No. 1 was driving the Wagon R.
DL3CAG4095 at a fast speed in a rash and negligent manner and
near Block No. 18 Crossing, Lodhi Road, the car hit the
motorcycle DL3SAZ2725 which was being driven by the deceased
Pradeep Thakral on which Nishant Singh and Ramesh Kumar were
the pillion riders. The police had arrived at the spot, registered the
case vide FIR No. 87/08 at PS Lodhi Colony and arrested the
driver i.e. Respondent No. 1. The site plan shows that the accident
had occurred at the centre of crossing. The testimony of Ramesh
Kumar and Nishant Singh on the aspect of rash and negligent
driving by respondent No. 1 remained unassailed. It has also come
in evidence that immediately after the accident, Pradeep Thakral
and other petitioners were removed to the hospital where Pradeep
Thakral scummed to the injuries and other petitioners sustained
grievous injuries on their persons. The petitioners also placed on
record the criminal proceedings i.e. Copy of FIR, post mortem
report etc. which clearly prove that respondent No. 1 was
negligent. Further no evidence contrary to this stand has been
brought on record by the respondents..........."
6. The testimony of two eye witnesses with regard to the manner of the
accident was not challenged in their cross-examination. Their testimonies
along with registration of a criminal case was sufficient to draw an
inference of culpable negligence on the part of Respondent No.5, (Kunal
Dhingra) driver of the offending Maruti Car.
7. Respondent No.5, the driver of the offending car did not appear to rebut
the testimony of eye witnesses. Thus, it is established that the accident
was caused on account of rash and negligent driving of Maruti Car driver.
Merely because three persons were riding on a two wheeler, no inference
can be drawn that the deceased/motorcyclist himself contributed to the
negligence.
8. Thus, it is established that the accident was caused solely on account of
negligent driving of Maruti Car by Respondent No.5.
QUANTUM:-
9. I have before me, the salary certificate issued by CMA, CGM Global
(India) Pvt. Ltd., the deceased's employer. This certificate shows that the
deceased was getting a sum of `1598/- towards conveyance allowance.
This amount being incidental to employment was not for the benefit of
family and was, therefore, not to be taken into consideration for
computation of loss of dependency. The amount of `4065/- was paid to
the deceased as Misc. Earnings-2.
10. The Claimant Asha Thukral in her affidavit Ex.PW-1/X was completely
silent with regard to this sum of `4065/-. In her cross-examination, she
admitted that the amount of `4065/- was towards increase in salary as
arrears. She was unable to say as to for what duration/months the arrears
were paid.
11. Thus, from PW-1's cross-examination it was clear that the sum of
`4065/- was in respect of arrears on salary for previous months. This
amount and the amount of `1598/- which PW-1 admitted was towards
conveyance for attending office, is liable to be deducted from the
deceased's salary as reflected in Ex.PW-1/4.
12. It is urged that there was no evidence with regard to deceased's future
prospects and thus addition of 50% was unjustified; it should have been
only 30% towards inflation. The deceased was in stable employment
with a reputed company. Respondent No.1 in her affidavit Ex.PW-1/X
testified that the deceased's income would have increased to `15,000/- to
`20,000/- per month in the near future. This testimony was not rebutted
by giving any suggestion. In the circumstances, addition of 50% towards
future prospects cannot be faulted.
13. The loss of dependency thus comes to `17,07,048/- (7903/- + 50% x 3/4
12 x 16).
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 Claimants are further entitled to a sum of `10,000/- each towards
loss of consortium, loss to estate and funeral expenses.
16. The overall compensation thus stands reduced from `27,15,100/- to `
17,62,048/- which shall carry interest @ 7.5% per annum from the date of
filing of the Petition till its payment.
17. The excess amount of `9,53,052/- along with proportionate interest and
the interest accrued, if any, during the pendency of the Appeal shall be
refunded to the Appellant Insurance Company.
18. The awarded amount shall be disbursed/held in fixed deposit in the name
of the Claimants in terms of the order passed by the Claims Tribunal.
19. The statutory deposit of `25,000/- shall be refunded to the Appellant
Insurance Company.
20. The Appeal stands disposed of in above terms.
21. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
SEPTEMBER 27, 2012
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