Delhi High Court
New India Insurance Co Ltd. vs Rajpal & Ors on 17 September, 2013
Author: Suresh Kait
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on:17th September, 2013
+ MAC.APP. 950/2011 & CM No.19712/2011
NEW INDIA INSURANCE CO LTD. ..... Appellant
Through: Mr.K.L. Nandwani, Advocate.
Versus
RAJPAL & ORS ..... Respondents
Through: Mr. Gurmeet Singh Hans and
Mr.Gurvinder Singh, Advocates.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
MAC.APP. 950/2011
1. The present appeal is directed against the impugned award dated
26.07.2011, whereby the learned Tribunal has granted a compensation of
Rs.9,27,200/- with interest at the rate of 7.5% per annum from the date of
filing of the petition till the date of realization of the amount.
2. Learned counsel appearing on behalf of the appellant/Insurance
Company has mainly argued on three points. Firstly, the claimants pleaded
in the claim petition that the deceased was earning a sum of Rs.4,500/- per
month, whereas the learned Tribunal has considered his monthly income as
Rs.6,448/- in view of the minimum wages applicable to a matriculate.
3. The second ground argued by the learned counsel for the
appellant/Insurance Company is that the claimants have failed to prove the
negligence on the part of the driver of the offending vehicle in the accident
in question which occurred on 27.08.2010. He submitted that it being a case
of accident between two vehicles, the learned Tribunal has failed to consider
the contributory negligence on the part of the deceased.
4. To strengthen his arguments, learned counsel for the
appellant/Insurance Company has relied upon the case of Rajesh Kumar Vs.
Yudhvir Singh & Anr., 2008 ACJ 2131, wherein the Supreme Court has
observed as under:-
"7. The claim petition was filed under Section 166 of the Act
and not under Section 163A thereof. It was contended by the
claimant-appellant that the driver of the bus in question was
rash and negligent as a result whereof, the accident took place.
By reason of Section 167 of the Act, an injured person had the
option either to file a claim under the Motor Vehicles Act or the
Workmen's Compensation Act, if both the Acts apply. It is,
therefore, a case where the claimant could have filed at his
option an application under the Workmen's Compensation Act.
Section 163A provides for filing of a claim petition where an
accident took place by reason of use of the motor vehicle. It is
not necessary to prove any fault on the part of the driver or the
vehicle. The Tribunal in a proceeding arising under
Section 166 of the Act is required to hold a full fledged trial. It
is required to collect datas on the basis whereof, the amount of
compensation can be determined. Under Section 163A of the
Act, however, the question of liability and extent of proof
thereof are not justiciable. The Tribunal can determine the
amount on the basis of the basic datas provided therefor.
Explanation appended to Section 163A of the Act, reads, thus:
"Explanation.--For the purposes of this Sub-section,
'permanent disability' shall have the same meaning and
extent as in the Workmen's Compensation Act, 1923."
5. The learned Tribunal has relied upon the statements of PW1
Smt.Reena/widow of the deceased and PW2 Rajpal/father of the deceased,
who deposed that on 27.08.2010 at about 11.14 AM, the deceased victim
was going from Badarpur to Ashram in the Bus bearing No.DL-1PB-0628
driven by respondent No.4 in a rash and negligent manner due to which he
met with an accident and suffered fatal injuries. The statements of these
witnesses are corroborated by the certified copies of the criminal case
pertaining to FIR No. 252/10, P.S. Sarita Vihar Ex.PW1/B (Colly). The
certified copies of the FIR mentioned above, site plan, arrest memo of the
driver of the offending vehicle, mechanical inspection report and the post-
mortem report of the deceased/victim are on record.
6. To determine the negligence on the part of the driver of the offending
vehicle, the learned Tribunal has relied upon the case of National Insurance
Company Limited Vs. Pushpa Rana, 2009 ACJ 287, decided by the
Coordinate Bench of this Court. It is held that where the claimants filed
either the certified copies of the criminal record or the criminal record
showing the completion of investigation by the police or issuance of charge
sheet under Sections 279/304-A IPC or the certified copy of the FIR or the
recovery memo of the mechanical inspection report of the offending vehicle,
then these documents are sufficient proof to reach to a conclusion that the
driver was negligent.
7. On the issue of monthly income of the deceased, it is claimed by the
claimants that the deceased was working as a Clerk at Pitampura, New Delhi
and was getting a monthly salary of Rs.4,500/-. It is pertinent to note that
the claimants have not produced any documentary proof regarding the
income. The position would have been different if this fact has been proved
by the documentary proof and in that eventuality; there was no requirement
to consider the monthly income of the deceased on the basis of the Minimum
Wages Act, 1948. Since the claimants have failed to produce any
documentary proof regarding the salary received by the deceased, therefore,
mere bald statement will not serve the purpose. The settled legal position is
that if the claimants have failed to prove the income of the deceased, then in
that case, the Tribunal and court have to consider the income of the deceased
on the basis of the Minimum Wages Act prevalent at the relevant time. So,
in this case, the learned Tribunal, in the absence of any cogent evidence
regarding the monthly income of the deceased, has rightly considered the
income of the deceased as per the Minimum Wages Act applicable to a
matriculate at the relevant time, which was Rs.6,488/- on the date of the
accident, i.e., 27.08.2010.
8. Thirdly, the learned counsel for the appellant/Insurance Company has
argued that without appreciating the law and evidence on record, the learned
Tribunal has granted the compensation of Rs.9,27,200/- with interest at the
rate of 7.5% per annum from the date of filing the petition till the realization
of the amount, despite the fact that vide order 18.12.2010, it was directed
that no interest will be payable from 01.11.2010 till the date of conclusion of
entire PE, which was concluded on 06.07.2011.
9. Learned counsel further submitted that in view of the above, the
learned Tribunal has erred in granting interest for the abovenoted period of
nine months, i.e., from 01.11.2010 to 06.07.2011, which is contrary to the
order dated 18.12.2010.
10. Learned counsel appearing on behalf of the respondents/claimants has
fairly conceded that the interest for the period mentioned above has been
wrongly granted by the learned Tribunal. Therefore, the said interest may be
deducted from the compensation amount.
11. I order accordingly.
12. Consequently, the Registrar General of this Court is directed to
release the compensation amount with upto date interest except the interest
for the period from 01.11.2010 to 06.07.2011, in favour of the
respondents/claimants as per the terms and conditions fixed by the learned
Tribunal in its order dated 26.07.2011.
13. The statutory amount shall be released in favour of the
appellant/Insurance Company along with interest for the period mentioned
above.
14. In view of the above, the appeal is partially allowed.
CM No.19712/2011 (for stay)
With the disposal of the appeal itself, this application has become
infructuous. The same is accordingly disposed of.
SURESH KAIT, J.
SEPTEMBER 17, 2013
sb/RS
