United India Insurance Co Ltd vs Sungdhi Devi & Ors
2014 Latest Caselaw 6607 Del

$~A-15.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision: 09.12.2014

+     MAC.APP. 1066/2011

      UNITED INDIA INSURANCE CO LTD             ..... Appellant
                      Through Mr. Manish Kaushik Advocate for
                              Mr. K.L. Nandwani, Advocate
               versus
      SUNGDHI DEVI & ORS                        ..... Respondents
                      Through Ms. Monika Phastyal for Mr. S.N.
                              Parashar, Advocate for R1 to R6.

CORAM:
HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. The present appeal is filed by the appellant seeking to impugn the award dated 11.08.2011. The deceased Mukesh Mukhiya had boarded a TSR. When he reached Badarpur and got off the TSR, while trying to cross the road, he was hit by a TATA 407 said to be driven in a rash and negligent manner. He died due to the injuries sustained.

2. Based on the evidence on record, the tribunal concluded that the accident took place due to the rash and negligent driving of the driver of the offending vehicle.

3. On compensation, the tribunal awarded a total compensation of Rs.8,97,024/- details of which are as follows:

       Loss of dependency         Rs.8,07,024
      Funeral Expenses           Rs.20,000/-
      Love & Affection           Rs.95,000/-
      Loss of consortium         Rs.25,000/-
               Total             Rs.9,47,024/-
      Less Interim Award         Rs.50,000/-
      Balance Payable sum        Rs.8,97,024

4. Learned counsel for the appellant seeks to impugn the award. He submits that the deceased was crossing the main road and hence was negligent in crossing the road. This is a clear case of contributory negligence as the deceased should not have crossed the road at that time. He further submits that the deceased was working as a labourer. The income of the deceased has been assessed based on the minimum wages of an unskilled labourer. He submits that in these facts, when there is no certainty of employment of the deceased, enhancement of the assessed income for future prospects is not in order. It is lastly submitted that non-pecuniary damages awarded were on the higher side.

5. As far as the issue of negligence or contributory negligence having caused the accident is concerned, we may look at the evidence on record. PW2 Musafir Mukhia, cousin of deceased accompanied the deceased at the time of the accident and is an eye witness. On the said date, as per the affidavit by way of evidence of the said PW2, they were coming back to their house from Jaitpur in a TSR. At Badarpur, they got down from the TSR and were in the process of crossing the road when a TATA 407 came and hit the deceased. The TATA 407 was being driven in a rash and

negligent manner and at a very high speed. The driver tried to apply brakes but the speed was so high that he could not save the accident. After the accident, the driver/respondent No.7 tried to run away from the spot but was apprehended by PW2. In his cross examination, he denies that there was no zebra crossing at the spot where the accident occurred.

6. A perusal of the site plan shows that the accident has taken place when the deceased was standing on one side of the road. The accident spot is also near a crossing.

7. As per Rule 8 of the Road Regulations, 1989 (issued under Section 118 of the Motor Vehicles Act, 1988) the driver of the motor vehicle has to slow down when approaching at a road intersection or a road junction and shall not enter any such intersection, junction or crossing until he has become aware that he may do so without endangering the safety of persons thereon.

"8. Caution at road junction.- The driver of a motor vehicle shall slow down when approaching at a road intersection, a road junction, pedestrian crossing or a road corner, and shall not enter any such intersection, junction or crossing until he has become aware that he may do so without endangering the safety of persons thereon."

8. Clearly, at the accident spot, the driver of the offending vehicle/respondent No.7 was obliged to slow down the vehicle and make sure that no one was crossing the road.

9. The evidence of PW2 shows that the driver of the offending vehicle was driving the vehicle at very fast speed which is contrary to the above regulations. It is noteworthy that the area in question which is around Badarpur, is very crowded area and the offending vehicle should not have been driven in a very fast speed as was being done in the present case.

10. A charge sheet has also been filed against the driver of the offending vehicle/respondent No.7. Accordingly, in view of the evidence on record, there is enough evidence to show that the accident took place due to the rash and negligent driving of the offending vehicle.

11. As far as award of future prospects is concerned, a perusal of the award shows that the tribunal has granted future prospects by adding 50% to the minimum wages to assess loss of dependency.

12. I can take judicial note of the fact that minimum wages for a semi- skilled worker in 2002 were Rs.2,833.4/- P.M. and in 2012 were Rs.7,748/- P.M. It is obvious that the prescribed minimum wages have more than doubled in ten years.

13. 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 below 40 years an addition of 50% should be made in the wages for the purpose of computing loss of future earnings.

14. 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.

15. 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. (2009) 6 SCC 121, Reshma Kumari & Ors. vs. Madan Mohan & Anr. 2013 ACJ 1253 and other judgments and concluded that the Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors. (supra) 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).

16. 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.

17. Keeping in view the judgments above, I see no reason to disagree with the award on future prospects @ 50%.

18. As far as non-pecuniary damages are concerned, a sum of Rs.25,000/- has been awarded for loss of consortium; Rs.95,000/- for loss of love and affection. The compensation amount is fair and reasonable. There is no merit in the appeal. The same is dismissed.

19. All interim orders are vacated. Statutory amount be refunded to the appellant.

JAYANT NATH, J DECEMBER 09, 2014/'raj'