Delhi High Court
Iffco Tokio General Insurance Co ... vs Smt Mukesh Devi & Ors. on 21 October, 2013
Author: Suresh Kait
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 21st October, 2013
+ MAC.APP. 615/2011
IFFCO TOKIO GENERAL INSURANCE
CO LTD ..... Appellant
Represented by: Ms. Suman Bagga, Adv.
Versus
SMT MUKESH DEVI & ORS. ..... Respondents
Represented by: Mr. Nitin Yadav, Adv. for R1 to
R5.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Instant appeal has been preferred against the award dated 22.03.2011,
whereby ld. Tribunal has granted compensation for a sum of Rs.21,99,120/-
with interest @ 7.5% per annum from the date of filing of the petition till the
date of realization.
2. Ld. Counsel appearing on behalf of the appellant has argued the
instant appeal on two grounds, firstly; deceased was not on a permanent job,
which fact has been proved by the employer of the deceased. Despite that,
ld. Tribunal has granted 30% towards future prospects, which is contrary to
the dictum of Sarla Verma Vs. DTC and Ors. 2009 (6) SCC 121, further
affirmed by the judgment of Reshma Kumari & Ors. Vs. Madan Mohan &
Anr. delivered in Civil Appeal No. 4646 of 2009.
3. The second ground argued by the counsel for the appellant is that
deceased was on a scooter and was in a drunken condition. This fact has
been recorded in the Post-Mortem Report which is on record. In such
eventuality, ld. Tribunal should have considered the contributory negligence
on the part of the deceased; however it failed to do so.
4. On the other hand, ld. Counsel appearing on behalf of the respondents
/ claimants submits that PW3, Sh. Randhir Singh Sehrawat, HR Manager,
appeared and stated that deceased Surender Pal Singh had joined services of
Sarvatra Integrated Services on 18.02.2009. The said witness produced the
computerized print of the salary slips of April, 2009, May, 2009 and June,
2009. Same are Ex.PW3/A to Ex.PW3/C. He further submitted that the
deceased was under probation at the time of accident. Probation period was
for 6 months. He could have been removed without any notice because of
unsatisfactory work.
5. Ld. counsel further submitted that out of the total 6 months of
probation he had already completed 4 months. His work was satisfactory,
therefore, he was likely to be permanent. Hence, no merit in the appeal and
accordingly may be dismissed.
6. PW-3 has clearly stated that, as per the record, the efficiency of the
deceased Surender Pal Singh during the period of four months service had
been satisfactory. He was likely to be confirmed. At the time of accident he
was under probation and his four months report was found to be satisfactory
and, therefore, I am of the considered opinion that deceased was in a
permanent job. Tribunal has rightly considered his salary as Rs.13,000/- per
month.
7. On the issue of future prospects, the age of the deceased at the time of
accident, i.e., on 24.06.2009 was 46 years and the ld. Tribunal while
awarding the compensation has added 30% towards future prospects. This
issue has been decided by the Apex Court in the case of Rajesh and Ors. Vs.
Rajbir Singh and Ors. 2013 (6) SCALE 563 and this court has followed in
the case of ICICI Lombard Gen. Ins. Co. ltd. v. Angrez Singh & Ors. in
MAC.846/2011. Therefore, this ground is not available to the appellant.
8. As the issue of the contributory negligence is concerned, there is no
proof or material produced by the appellant to ascertain that the deceased
had consumed Alcohol on the date of accident. They were given liberty by
the ld. Tribunal, however, they failed to produce any evidence or
documentary proof to prove that he was in a drunken condition. Mere
mentioning of alcoholic smell in Post Mortem Report does not serve the
purpose unless quantity of alcohol is determined.
9. The orders dated 30.11.2010 and 26.02.2011 passed by ld. Tribunal
also prove that the appellant was given sufficient opportunities to examine
any witness to prove the contributory negligence on the part of the deceased,
however they failed to do so.
10. In view of the above discussion, I do not find any merit in the instant
appeal. Same is accordingly dismissed.
11. Vide order dated 25.11.2011, 20% of the award amount was directed
to be released in favour of the respondent nos. 1 to 5 apart from a sum of
Rs.20,000/- to be utilized by respondent nos. 1 to 5 towards pleader fee.
12. Consequently, balance compensation amount be released in favour of
the respondents / claimants.
13. Statutory amount be also released in favour of the appellant.
SURESH KAIT, J
OCTOBER 21, 2013
Jg/RS
