United India Insurance Co Ltd vs Kusum Lata & Ors
2014 Latest Caselaw 6546 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                Date of decision:08.12.2014
+     MAC.APP. 986/2014 & CM Nos.17962/2014
      UNITED INDIA INSURANCE CO LTD
                                                              ..... Appellant
                         Through:     Mr. K. L. Nandwani, Advocate

                         versus

      KUSUM LATA & ORS
                                                            ..... Respondent
                         Through:     None

CORAM:HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

MAC APP.986/2014 & CM No.17962/2014 (stay)

1. The present appeal is filed seeking to impugn the award dated 06.09.2014.

2. Brief facts are that on 01.04.2012 Shri Ramesh Kumar met with an accident with a bus said to be driven by its driver in a rash and negligent manner. Shri Ramesh Kumar was going in a swift car and the accident took place at Sanjay T-point, near domestic airport Road.

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.

4. On compensation, the Tribunal awarded that total compensation of

Rs.22,53,250/- , the details of which are as follows:-

           S.No.                Head                        Amount
           1.    Loss        of       dependency         Rs.20,18,250/-
                 (Rs.12937.5/ x 12 x 13)
           2.    Loss of love and affection              Rs.1,00,000/-
           3.    For Funeral expenses                    Rs.25,000/-
           4.    Loss of estate                          Rs.10,000/-
           5.    Loss of consortium                      Rs.1,00,000/-
                                 Total                   Rs.22,53,250/-

5. Learned counsel appearing for the appellant had strenuously urged that no negligence was proved in the facts and circumstances this case and that the deceased was driving the swift car came from the side and hit the offending vehicle-the bus. Hence it is urged that the accident took place due to the negligence of the deceased. Based on this submission this Court on 05.11.2014 had summoned the Trial Court Record.

6. Today learned counsel further submits that apart from the fact that negligence is not proved, he submits that the computation of compensation is erroneous. He submits that the Tribunal has wrongly granted future prospect at the rate of 15 % on an income which is a fixed income and that when the income is fixed the question of future prospect does not arise. He further submits that the Tribunal has awarded excessive amount for non- pecuniary damages on loss of love and affection and loss of consortium at Rs.1,00,000/- each which is on the higher side.

7. On the issue of negligence a perusal of the award shows that the Tribunal relied upon the evidence of PW3 HC Jagbir Singh, who is an eye- witness, the site plan and other record of the criminal case to hold that the

accident took place due to the rash and negligent driving of the driver of the bus.

8. I may look at the evidence on record. PW3 HC Jagbir Singh states that on 01.04.2012 he was on duty at Sanjay T point with Ct. Rambir, and Delhi Home Guard Ct. Rajwinder and their duty timings were 10 p.m. to 5 a.m. The accident took place at 4.40 a.m. in his presence. He further states that offending bus driven in rash and negligent manner by its driver, smashed the swift car due to which car turned over on the other side of the road. In his cross-examination he reiterates that he had seen the accident as it occurred.

9. The FIR is also based on the statement of HC Jagbir Singh. The statement on the basis of which an FIR was registered states that bus came from Sanjay T Point at a very fast speed with gross negligence. The swift car was coming from Mahipal towards the airport. The bus hit the car because of which the car turned over, crossed the central divider and fell on the other side upside down.

10. The site plan also shows that the place where the accident took place is point A on one side. The place where the bus was found standing shown is point B. Point B is near Point A, on the same side. Point C is the place where the swift car was standing after crossing the central divider having fallen 35 feet away from the site of the accident.

11. The mechanical inspection report of the bus shows that front side of the bus was badly damaged.

12. The aforesaid evidence on record clearly shows that the offending bus was being driven at a very fast speed. The bus hit the car from the front side. Due to the impact the car over-turned and fell 35 feet away from the

site of the accident. It is obvious that had the car hit the bus on the side, it could not have been tossed away 35 ft. across the divider. There is no merit in the contention of the appellant. The chargesheet has also been filed against the driver of the offending vehicle.

13. Reference may also be had to the judgment of the Supreme Court in the case of NKV Bros (P) Ltd v. M. Karumai Ammal & ors., 1980 ACJ 435 where in para 3 the Supreme Court held as follows:

"3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their 'neighbour'. Indeed, the State must seriously consider no fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals. We must remember that judicial tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for state relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several

years. The states must appoint sufficient number of tribunals and the High Courts should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many states are unjustly indifferent in this regard."

14. In the light of the evidence on record, there is no reason to disagree with the findings of the Tribunal that the accident took place due to rash and negligent driving of the offending vehicle.

15. Coming to the issue of future prospect, PW1 Smt. Kusum Lata, the widow of the deceased states in her affidavit in evidence that her late husband was a driver by profession and was earning a sum of Rs.15,000/- as a salary from Intaglio Solutions and was also getting Rs.5000/- for overtime work. The Tribunal based on the evidence on record, i.e. pay slip on the letter head of Intaglio Solutions concluded that the deceased was drawing Rs.15,000/- per month. As the age of the deceased was 50 years and 3 months, future prospect of 15 % was awarded on the annual income. 1/4th was deducted for personal and living expenses.

16. In NCR trained drivers are earning well. There are no reasons to disagree with the tribunal enhancing the assessed income by 15%. There is no merit in the said contention of learned counsel for the appellant.

17. Regarding non-pecuniary damages, the Tribunal has awarded Rs.1,00,000/- for loss of love and affection and Rs.1,00,000/- for loss of consortium. Reference may be made in various recent judgements of the Hon'ble Supreme Court in the case of Kala Devi vs. Bhagwan Das, 2014 (12) SCALE 513 and Anjani Singh & Ors. vs. Salauddin & Ors., JT 2014 (7) SC 183. The compensation so awarded is fair and just.

18. In view of the above, there is no merit in the contention of learned counsel for the appellant and accordingly, the appeal and the application stand dismissed.

19. Four weeks is granted to the appellant to comply with the directions of the Tribunal.

20. Statutory amount, if any, deposited by the appellant be released to the appellant.

JAYANT NATH, J.

DECEMBER 08, 2014 An