Delhi High Court
New India Assurance Co Ltd vs Sunita Devi & Ors on 23 August, 2013
Author: Suresh Kait
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 23rd August, 2013
+ MAC.APP. 25/2012 & CM No.269/2012
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr. Vaidant Chadha, Adv.
versus
SUNITA DEVI & ORS ..... Respondents
Through: Mr. Rajender Kumar, Adv. for R-1 to 4.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. The present appeal is directed against the impugned award dated
1.10.2011 whereby the learned Tribunal has awarded a sum of
Rs.11,72,800/- as compensation.
2. The counsel appearing on behalf of the appellant has argued the
instant appeal on the following grounds:
"b) Because the Tribunal has failed to appreciate that it was not
a case of sole negligence of respondent No.5 which is clear from
the time and date of accident and the site plan which shows that the
accident has taken place as red light and it is due the negligence of
deceased himself who hit the vehicle on back side.
c) Because the Tribunal has passed the award against its own
findings. On one side it is holding that the Respondents No.1 to 4
have failed to prove the avocation of the deceased and on the other
hand is taking minimum wages as monthly wages instead of
notional income of Rs.15,000.00 per annum."
3. As regards the issue of negligence on the part of the deceased is
concerned, the learned Tribunal has recorded in its impugned award that the
insurance company, i.e., appellant, was represented by a counsel who had
filed his vakalatnama on 4.5.2010 but preferred to contest the case by not
filing any written statement despite various opportunities granted on
10.5.2011, 1.2.2011, 20.11.2010 and 13.9.2010. Accordingly, the defence of
the appellant was struck off vide order dated 26.7.2011. Moreover the
investigating officer of the F.I.R. No.58/10 P.S. NFC has also filed on record
a copy of confirmation of the insurance policy by the officials of the
appellant regarding vehicle bearing No.MP07-GA-1983 which was insured
for the period 29.4.2009 to 28.4.2010 vide policy
No.451900/31/09/01/00001541.
4. Moreover, the appellant has not examined any witness to prove that
the driver of the offending vehicle was negligent but the deceased himself
was negligent for the accident.
5. In view of the above, I do not find any substance in the grounds
argued by the counsel for the appellant.
6. As regards the 50 per cent of the future prospects awarded by the
learned Tribunal is concerned, the age of the deceased at the time of accident
was 31 years. The Hon'ble Supreme Court in Rajesh & Ors. Vs. Rajbir
Singh & Ors. 2013 (6) SCALE 563 held as under:
"11. Since, the Court in Santosh Devi's case (supra) actually intended
to follow the principle in the case of salaried persons as laid in Sarla
Verma's case (supra) and to make it applicable also to the self-
employed and persons on fixed wages, it is clarified that the increase
in the case of those groups is not 30% always; it will also have a
reference to the age. In other words, in the case of self-employed or
persons with fixed wages, in case, the deceased victim was below 40
years, there must be an addition of 50% to the actual income of the
deceased while computing future prospects. Needless to say that the
actual income should be income after paying the tax, if any. Addition
should be 30% in case the deceased was in the age group of 40 to 50
years."
7. Accordingly, keeping in view the dictum of the Supreme Court in the
case of Rajesh & Ors. (supra), I hold that the learned Tribunal has rightly
awarded 50 per cent towards future prospect.
8. In view of the above, I do not find any discrepancy in the order of the
learned Tribunal and the instant appeal is dismissed.
9. The statutory amount shall be released in favour of the appellant.
SURESH KAIT, J
AUGUST 23, 2013/b'nesh
