Delhi High Court
Shri Ram General Insurance ... vs Shabnam & Ors. on 11 December, 2014
$~A-57
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 11.12.2014
+ MAC.APP.1106/2014
SHRI RAM GENERAL INSURANCE CO.LTD. ..... Appellant
Through Mr.Kamaldeep Advocate.
versus
SHABNAM & ORS. ..... Respondents
Through Mr.Navneet Goyal, Advocate for R-1
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. The present appeal is filed seeking to impugn the Award dated
17.10.2014. The brief facts which led to the accident in question is that
deceased Akram on 20.6.2012 was going to Jafrabad Market by Scooter. At 66
Foota Road, Jafrabad, Welcome, Delhi he was hit by a truck stated to be driven
in a rash and negligent manner. The deceased suffered grievous injuries and
died in the course of his treatment.
2. Based on the evidence on record the Tribunal concluded that the accident
took place due to the rash and negligent driving of the truck.
3. On compensation the Tribunal awarded total compensation of
Rs.12,09,060/-. Loss of dependency of Rs.10,74,060/- was awarded. Non
pecuniary damages were awarded as followed:-
"Love and affection Rs.100,000/-
Loss of estate Rs. 10,000/-
Funeral expenses Rs. 25,000/-
Total Rs.1,35,000-"
4. Learned counsel appearing for the appellant makes three submissions to
impugn the Award. He firstly submits that the deceased Akram did not possess
a driving license to drive a scooter. Hence, he was not a qualified driver. He
further submits that there is contributory negligence on his part which has
caused the accident. He relies on the cross-examination of the mother of the
deceased PW-1 to contend that the deceased did not have a driving license of a
scooter. He further submits that while computing loss of dependency the
Tribunal after having assessed the income of the deceased based on minimum
wages of an unskilled worker at Rs.7,020/- per month enhanced the said
amount by 50% towards future prospects. He submits that this is erroneous. He
lastly submits that the Tribunal has come to a conclusion that the driving
license of the driver of the offending vehicle respondent No.2 is fake and hence
erroneously directed the appellant to pay the award amount and recover the
amount from the owner and driver of the offending vehicle. He submits that
this is erroneous and the appellants have no liability.
5. Learned counsel appearing for respondent No.1 submits that as far as the
issue of contributory negligence is concerned, in the written statement filed by
the appellant there is no plea taken about the deceased not having a driving
license. He further submits that this is also not one of the grounds taken in the
present appeal and hence the appellant cannot be permitted to raise this
contention.
6. A perusal of the cross-examination of PW-1 the mother of the deceased
shows that the only statement made is that the driving license of the scooter has
not been placed on record. She does not state that he did not have a driving
license. From the perusal of the Award it appears that this argument was never
taken before the Tribunal. A perusal of the ground of the appeal also shows that
this plea has not been raised in the grounds of appeal. In my view the said
submissions of the appellant have no basis whatsoever. No attempt was made
to show before the Tribunal that the deceased did not have a driving license for
a scooter. The submission is without merit.
7. The next submission pertains to alleged contributory negligence of the
deceased. On the last date of hearing on 8.12.2014 a submission was made that
contributory negligence arises on account of the fact that the scooter had hit the
truck in a head on collusion and hence there is contributory negligence. Today
it is urged that the deceased did not have a driving license and hence there is
contributory negligence of the deceased in causing the accident. In the grounds
of appeal it is urged that it is a case of contributory negligence as the deceased
was not wearing a helmet and driving the scooter. Clearly, the appellants are
taking different stands at different places without any attempt to show as to
how the said conclusions follow from the evidence on record. The appellant is
making submissions only for the sake of making submissions. There is no merit
in the present contention. Same is rejected.
8. On future prospects the Tribunal has computed the income of the
deceased based on minimum wages for an unskilled worker at Rs.7,020/- per
month and enhanced the same by 50% for computing the loss of dependency.
9. 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.
10. 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.
11. 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.
12. 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 Sarla Verma vs. DTC, 2009 (6) SCALE 129,
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.
13. 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 this Court in the case of ICICI Lombard General Insurance
Company vs. Angrej 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.
14. Regarding the liability of the appellant the Tribunal has noted that the
driving license of respondent No.2 which has been issued from the Agra
Licensing Authority is fake. However, relying upon the judgment of the
Supreme Court in National Insurance Company Ltd. vs. Kusum Rari, 2006
ACJ 1336 it was held that the appellant may pay the awarded amount to the
claimants and recover from the driver and owner of the offending vehicle. To
the above effect are also the judgments of the Supreme Court in the case of
National Insurance Co. Ltd. Vs. Challa Bharathamma & Ors., (2004)8 SCC
517 and Manager, National Insurance Co. Ltd. v. Saju P.Paul and another
2013 ACJ 554. There are no reasons to differ with the views of the Tribunal.
The present appeal is dismissed.
15. Statutory amount deposited by the appellant at the time of filing the
appeal be refunded to the insurance company.
16. Appellant may comply with the Award within four weeks from today.
17. A copy of this order be given dasti, as prayed.
18. All pending applications, if any, also stand disposed of accordingly.
JAYANT NATH, J
DECEMBER 11, 2014
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