New India Assurance Co Ltd vs Urvashi Anwani & Ors
2014 Latest Caselaw 6507 Del

$~A-8
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of Decision: 05.12.2014

+     MAC.APP. 7/2011

      NEW INDIA ASSURANCE CO LTD            ..... Appellant
                   Through  Mr.Manish Kaushik, Advocate for
                            Mr.K.L.Nandwani, Advocate.

                          versus

      URVASHI ANWANI & ORS                    ..... Respondents
                   Through  Mr.S.N.Parashar, Advocate.
      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

1. The present appeal is filed seeking to impugn the award dated 04.09.2010.

2. The brief facts which led to filing of the claim petition are that the deceased Vikram Anwani on 11.09.2008 was going on foot. Near Shakti Sthal Bus Stand, Ring Road, Darya Ganj, Delhi, he was hit by a motorcycle which said to be driven in a rash and negligent manner. He fell down on the road and sustained fatal injuries.

3. Based on the evidence on record, the Tribunal concluded that the accident took place due to the rash and negligent driving of the offending vehicle. On compensation the Tribunal awarded a total compensation of Rs.15,61,600/- as follows:-

      Loss of financial dependency                Rs.15,31,600/-
      Loss of love and affection                     Rs.10,000/-




       Loss of consortium                              Rs.10,000/-
      Funeral Expenses                                Rs. 5,000/-
      Loss of Estate                                  Rs. 5,000/-
                     Total                        Rs. 15,61,600/-

4. Learned counsel appearing for the appellant seeks to impugn the award on various grounds. He firstly submits that onus to prove the negligence of the offending vehicle was on the claimants, namely, respondents No.1 to 4 and they have failed to do the needful and hence the claim petition was not maintainable. It is next submitted that as per the evidence on record the deceased has died without any dependent inasmuch the claimants claim that the widow, father, mother and the grandfather of the deceased are dependents. He submits that it is on record that the wife was gainfully employed and not financially dependent upon the deceased. The father-in-law is also earning and hence he and his wife namely, the mother of the deceased would also not be dependent upon the deceased. Regarding the grandfather of the deceased it is urged that in any case he cannot be considered as a dependent on the deceased.

5. Learned counsel appearing for respondents No.1 to 4, however, on the contention regarding number of dependents submits that in any case the mother and the wife would be considered as a dependent upon the deceased. He further submits that the entire family was staying in a joint family and accordingly, the other senior citizens would also be considered dependent upon the deceased. He also relies upon the judgment of the Supreme Court in the case of National Insurance Co. Ltd. vs. Meghji Naran Soratiya and Ors., 2009 (12) SCC 796. Learned counsel further points out that there is no reason to reduce the compensation amount as the Tribunal has awarded non-

pecuniary damages for loss of consortium at Rs.10,000/-, for love and affection at Rs. 10,000/- and Funeral Expenses at Rs.5,000/- which are on the lower side. He further points out that after having assessed the income of the deceased at Rs. 10,010/- per month no enhancement was made on account of future prospects keeping in view that the deceased was 28 years old.

6. A perusal of the award shows that as far as negligence issue is concerned, the Tribunal concluded about the rash and negligent driving of the offending vehicle based on the charge-sheet filed against the driver of the offending vehicle and other accompanying records of the criminal case.

7. This court has in the case of National Insurance Company Limited vs. Pushpa Rana, 2009 ACJ 287 held that the chargesheet, FIR and other connected record filed in the criminal case can ordinarily be construed as sufficient evidence to show rash and negligent driving of the offending vehicle.

8. The offending vehicle in this case was a motorcycle. The deceased was going on foot. It is obvious that the offending vehicle was being driven at a very fast speed and that would have knocked down the deceased in a hard manner and resulted in serious injuries due to which he died. These kinds of injuries would have only occurred on account of the forceful impact of the motorcycle driven at a high speed.

9. Reference may also be had to the police record. A perusal of the site plan would show that the accident has taken place on the extreme left side of the road. A perusal of the FIR shows that the accident was witnessed by Head Constable Avadh Narayana who has stated that the offending vehicle came at a very high speed rashly and negligently and hit the deceased. The

FIR is based on the statement of the said eye witness.

10. Accordingly, in the light of the above evidence, there are no reasons to differ with the findings recorded by the Tribunal that the accident took place due to rash and negligent driving of the offending motorcycle.

11. As far as the dependency contention is concerned, in my opinion, PW-1 in her cross-examination has confirmed that she is a graduate from Delhi University and gainfully employed. She further states that her father- in-law was employed in Delhi Milk Scheme. He is retired from government service and he is getting his pension. The grandfather-in-law, namely, grandfather of the deceased was also getting his pension. However, keeping into account the fact that the entire family is staying in a joint family, there would be dependency of the wife and the mother of the deceased on the deceased.

12. Accordingly, in my opinion instead of deduction of 1/4 th on account of personal and living expenses it would be proper to deduct 1/3 rd on account of personal living expense.

13. However there is merit in the contention of the learned counsel for respondents No.1 to 4. The compensation for non-pecuniary damages as awarded by the Tribunal is on the lower side. The Tribunal has also not granted any enhancement of assessed income for future prospects keeping in view the age of the deceased i.e. 28 years as per also the judgments of the Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54, V. Mekala vs. M. Malathi & Anr 2014 ACJ 1441 and Smt. Savita vs. Bindar Singh & Ors. (2014) 4 SCC 505.

14. Reference may be had to the judgment of the Supreme Court in the case of Ranjana Prakash & Ors. vs. Divisional Manager & Anr., 2011 (8)

SCALE 240 where the Supreme Court held that where the claimants before the Tribunal have not preferred any cross-objections or cross-appeals, it is not possible for the High Court in Appeal to enhance the compensation amount. However, the Supreme Court held that as a ground of defence the claimants can always point out any error or deficiency in the Award of the Tribunal as a counter to any contentions raised by the insurance company or owner of the vehicle to ensure that the computed compensation amount as per the award is not reduced based on the contention of the owner of the offending vehicle or the Insurance Company. In para 6 the Supreme Court held as follows:-

"6. We are of the view that High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not challenged the award of the Tribunal on the ground that the Tribunal had failed to take note of future prospects and add 30% to the annual income of the deceased. But the claimants were not aggrieved by Rs. 23,134/- being taken as the monthly income. There was therefore no need for them to challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an appeal by the owner/insurer, the Appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek

enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross-objections."

15. In view of the above and the fact that there is merit in the contention of the learned counsel for the respondents on the issue of certain heads while computing compensation, I do not wish to reduce the compensation amount as awarded by the Tribunal.

16. Accordingly, the appeal is disposed of.

17. Statutory amount, if any, be refunded to the appellant.

JAYANT NATH, J DECEMBER 05, 2014 rb