United India Insurance Co Ltd vs Sunaina & Ors
2014 Latest Caselaw 6413 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of Decision : 03.12.2014

+     MAC.APP. 976/2014 and CM No.17744/2014 (stay)

      UNITED INDIA INSURANCE CO LTD
                                                                  ..... Appellant
                     Through:      Mr. K. L. Nandwani, Advocate

                          versus

      SUNAINA & ORS
                                                             ..... Respondents
                     Through:      Ms. Manpreet Kaur, Advocate

CORAM:
HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

1. By the present appeal, the appellant seeks to impugn the award dated 16.08.2014.

2. The brief facts are that on 25.05.2009 Shri Banke Lal was going on a bicycle from Mandawali towards National Highway no.24. When he reached near Khoda Colony, first Pusta a Tata truck driven rashly and negligently came from behind and hit the cyclist due to which the cyclist fell down and suffered grievous injuries and died on the spot.

3. Based on the evidence on record, the Tribunal concluded that the accident took place due to rash and negligent driving of the truck.

4. On compensation, the tribunal awarded a total compensation of Rs.8,51,200/-. Rs.6,16,200/- was awarded for loss of dependency. Monthly

salary of deceased was taken as Rs.3950/- based on the minimum wages of an un-skilled workman. As the deceased was more than 40 years, 30% was added for future prospects. 1/3rd was deducted for personal and living expenses of the deceased. Rs.1,00,000/- was awarded for love and affection, Rs.10,000/- for loss of estate, Rs.25,000/- towards funeral expenses and Rs.1,00,000/- for loss of consortium.

5. Learned counsel appearing for the appellant vehemently submits that findings recorded by the Tribunal, that the truck was driven in rash and negligent manner, is entirely misplaced. He submits that as per evidence of PW2 Manoj-the son of the deceased, the accident took place while the deceased was crossing the road by taking the cycle on his shoulder. He submits that this act of crossing the road is what caused the accident which took place in the centre of the road. Hence he submits that there was no negligence on the part of the driver of the truck in causing the accident. At best it is a case of contributory negligence on the part of the deceased while crossing the road by not properly keeping look out for the running traffic which caused the accident.

6. He further submits that the Tribunal has wrongly assessed the compensation by adding future prospects while computing the loss of dependency. Non-pecuniary damages are also on the higher side. He further alleges that the driver of the offending vehicle did not have a driving licence. Hence, he submits that in the light of the same there is no liability of the appellant company and the Tribunal wrongly granted recovery rights.

7. Coming to the contention regarding rash and negligent driving of the offending vehicle, PW2 in his affidavit by way of evidence states that on the day of the accident at about 11 PM after closing the shop at Mandawali,

he and his father used to go back to their house at Khoda Colony. His father was on his own bicycle and he was on his bicycle. They both were going on National Highway No.24 from Delhi to Khoda Colony. He was just 200 yds. behind his father. When his father reached just near first pusta of Khoda Colony which is just ahead of crossing to Hindan Bridge, suddenly a truck came from behind which was driven by its driver in a very rash and negligent manner and in a fast speed and hit his father with a great force. Due to which his father fell down on the road and received grievous injuries. In his cross-examination he however, states that the deceased was crossing the road when he was hit by the offending vehicle. At the time of crossing, the deceased had come down from the seat and was going on foot along with his bicycle and that the place of accident was centre of the road.

8. A perusal of the site plan, however, shows a different picture. As per the site plan filed by the police Ex. PW1/5 the accident has taken place on the side of the road. The deceased was also travelling parallel to the road and was not crossing. It is also noteworthy that the FIR is also registered based on the statement of PW2. Nowhere in the said statement on the basis of which the FIR is registered, an averment is made that the deceased was crossing the road when the accident took place. Subsequent charge-sheet has also been filed against the driver of the offending vehicle.

9. In the light of the evidence on the record, I am of the opinion that there is no reason to interfere in the findings recorded by the Tribunal. The truck has hit the cycle from the front side. This is also clear from the damage caused to the Truck which is apparent from the original photographs placed on record. The site plan and charge-sheet all show that there is negligence on the part of the driver of the offending vehicle. The stray

statement made by PW2 in his cross-examination before the Tribunal is at complete variation, with what has been stated in the affidavit by way of evidence i.e. that the father and son were going to their house at Khoda Colony on their bicycles and suddenly a truck came from behind which was being driven by its driver at a very rash and negligent manner and in a fast speed and hit the father. No such statement is made before the police. Possibly the son whose age is 18 years may have got confused while deposing.

10. In my opinion, the doctrine of res ipsa loquitor is clearly applicable to the facts of this case and the negligence of the offending truck can be inferred.

11. It may also be noteworthy that this Court in National Insurance Company Limited vs. Pushpa Rana, 2009 ACJ 287held that the factum of negligence can be concluded in causing the accident, based on the charge- sheet and other connected record of the criminal case.

12. I may also note that the argument about contributory negligence has not been raised by the appellant/Insurance Company in the written statement nor any submission seems to have made before the Tribunal. The Tribunal has nowhere discussed the said submission. Learned counsel for the appellant has placed his reliance on the judgment of High Court of Madhya Pradesh Magni Lal Vs. M.P.S.R.T.C. and others 1994 (1) T.A. C. 399 and on the judgment of this Court Rajesh Kumar vs. State in Crl. Rev. P.490/2008 decided on 07.5.2012 to contend that it would be a case of contributory negligence. Accordingly, these submissions have not been applicable to the facts of the present case.

13. Coming now to the enhancing of the salary by 30%, I can take

judicial note of the fact that minimum wages for an unskilled worker in 2002 were Rs.2679.70/- P.M. and in 2012 were Rs.7020/- P.M. It is obvious that the prescribed minimum wages have more than doubled in ten years.

14. In case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54 the Supreme Court held that in the case of self employed or those on fixed wages, when the victim is between 40-50 years an addition of 30% should be made in the wages for the purpose of computing loss of future earnings.

15. In the case of Smt.Savita vs. Bindar Singh & Ors., (2014) 4 SCC 505, the Supreme Court was of the view that in the case of self employed or those engaged on fixed wages, 30% increase in income over period of time would be appropriate. In the case of V.Mekala vs. M.Malathi & Anr., 2014 ACJ 1441, the Supreme Court in the case of injury to a student who was studying in Class XI aged 16 years had awarded 50% increase for future prospects.

16. Further, this court in the case of ICICI Lombard General Insurance Company vs. Angrej Singh & Ors. in MAC APP. 846/2011 in judgment dated 30.09.2013 had gone into this issue and had noted the judgments of the Supreme Court in the case of Smt.Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr.(supra), Reshma Kumari & Ors. vs. Madan Mohan & Anr.(supra) and other judgments and concluded that the Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54 has held that the future prospects should be given to persons who are self-employed or on fixed wages. This court further held that there is no conflict in the legal position as set out in the judgments of Reshma Kumari & Ors. vs. Madan Mohan & Anr(supra) and Rajesh & Ors. vs. Rajbir Singh & Ors. (supra).

17. I may further note that this court in MAC APP.761/2012 Rakesh and Ors. vs. National Insurance Co. Ltd. and Ors. vide judgment dated 02.04.2014 had in a case where the deceased was 24 years old added 50% to the income towards future prospects for computing loss of dependency based on the judgment of the Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors.(supra). Against the said judgment the appellant had filed an SLP before the Supreme Court. The said SLP No.5612/2014 was dismissed by the Supreme Court on 10.10.2014.

18. In view of the above legal position, 30% increase in the assessed salary is in order. The compensation, including the compensation for non- pecuniary amount is just and fair.

19. On recovery rights I do not find any reason to interfere with the findings of the Tribunal, keeping in view the judgment of the Hon'ble Supreme Court in case of Jawahar Singh vs. Bala Jain AIR 2011 SC 2436, United India Insurance Co. Vs. Rakesh Kumar 2008 SCC 298 and Manager, National Insurance Co. Ltd. v. Saju P.Paul and another 2013 ACJ 554 .

20. In view of the above, the appeal is accordingly dismissed. All interim orders stand vacated. Statutory amount lying deposited be released to the claimants proportionately in the same manner as directed by the Tribunal.

21. Stay application also stands dismissed.

JAYANT NATH, J

DECEMBER 03, 2014 An