National Insurance Company ... vs Sarita & Ors.
2014 Latest Caselaw 1656 Del

$~42
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Judgment delivered on: 27th March, 2014

+      MAC.APP. 630/2013

NATIONAL INSURANCE COMPANY LIMITED..... Appellant
                 Represented by: Mr. L.K.Tyagi, Adv.

                      Versus

SARITA & ORS.                                      ..... Respondents
                              Represented by: Mr.N.P.Nehra, Adv. for R1 to
                              R4.


CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. The present appeal has been preferred against the impugned award dated 28.02.2013, whereby Ld. Tribunal has awarded compensation for an amount of Rs.27,12,995/- with penal interest @ 12% per annum on account of delayed payment from the date of filing of the DAR till the date of deposit of the amount.

2. Brief facts of the case are that on 09.07.2012 at about 8.20PM, victim Prasenjit Biswas @ Sanjeev was coming from Gurgaon to his residence on his motorcycle bearing registration no. DL-9SF-7493. When he reached near Toll Tax, Rajokri Flyover on NH-8, a van bearing registration no. UP- 16-J-6977 was being driven by its driver in a rash and negligent manner

came from backside and after overtaking the motorcycle of the victim, all of a sudden the driver of the offending van brought his vehicle in front of the motorcycle and applied sudden brake. Due to this negligent act, the motorcycle of the victim dashed into the backside of the offending vehicle. As a result, the victim along with his motorcycle fell down on the road and sustained grievous injuries on his body. He was removed to hospital by PCR, where his medico-legal report no. 318424 dated 09.07.2012 was prepared and on 10.07.2012, he succumbed to his injuries. The post-mortem of the body of the victim was conducted vide PM. NO. JC-477/12.

3. Regarding the accident in question, an FIR No.208/2012 dated 10.07.2012 was lodged at Police Station-Vasant Kunj. After investigation, chargesheet under Section 279/304A IPC was filed against the driver of the offending van.

4. Mr. L.K. Tyagi, Ld. Counsel appearing on behalf of the appellant submits that the Ld. Tribunal has erred in holding that the accident had occurred due to the rash and negligent driving of the offending vehicle (van), which is insured with the appellant, in the absence of examination of any eye witness on the part of the claimants. The motorcycle driven by the deceased dashed into the backside of the offending van. Thus, Ld. Tribunal could not have held that the accident had occurred due to the sole negligence of the driver of the van and ought to have held contributory negligence at least to the extent of 50% on the part of the deceased himself.

5. He further submits that the Ld. Tribunal erred in taking monthly income of the deceased, being a driver as Rs.20,250/-, which was not in

accordance with the prevailing market trend. There is no cogent evidence on record regarding the income of the deceased except the statement of his employer, who had produced his income tax returns and the balance sheets. Thus, the income of the deceased as taken by the Ld. Tribunal is on a higher side.

6. Mr. Tyagi has drawn the attention of this court to Para 20 of the impugned award, wherein Ld. Tribunal directed the appellant to directly deposit the cheque of the compensation amount with SBI, Saket Court Complex Branch, within 30 days from the date of award and in case of default, penal interest @ 12% per annum was directed to be paid from the date of filing of DAR till deposit of the award amount.

7. Ld. Counsel further submits that present appeal was filed without delay and vide order dated 19.07.2013, this court stayed the execution of the impugned award dated 28.02.2013.

8. On perusal of the record, it is revealed that the claimants claimed that deceased was working as a driver with one Sh. Nipun Sahni and was earning Rs.20,250/- per month as per salary certificate issued by the employer of the deceased. In the DAR filed by the police, it was mentioned that monthly income of the deceased at the time of accident was Rs.20,250/- per month.

9. PW2, Sh. Nipun Sahni, employer of the deceased filed salary certificate of the deceased and deposed that deceased was in his employment for the last 5 years. He was cross-examined by the appellant and suggestion was put to him that he was paying high salary to the deceased.

10. It is on record that PW2 was a high paid professional, which is evident from his Income Tax Return for the assessment year 2011-2012 of Rs.6 Crores. He himself was working with DSP Merrill Lynch Capital at a high position. He was also drawing huge income of about Rs.65 Lacs from consultancy and investment. There was a rental income also.

11. Keeping in view the facts noted above, Ld. Tribunal opined that such highly paid professionals used to keep employees of trust which are also being paid very highly after considering the utility and ability of a person.

12. Therefore, it was not difficult for such highly paid professional to pay an annual salary of merely Rs.2.5 Lac to a personal driver. He appeared before the Ld. Tribunal and stood by his salary certificate. He not only filed the signed documents in support of the deceased driver but also did not hesitate to share his financial documents with the Tribunal. Accordingly, Ld. Tribunal recorded that there can be no other motivation but the loyalty of the deceased employee whose ability might have been overweighed in employer's mind.

13. Ld. Tribunal assessed the monthly income of the deceased as Rs.20,250/- including basic pay of Rs.15,000/-, Children allowance of Rs.1,000/-, travelling allowance of Rs.2,000/-, bonus of Rs.1,250/- and other allowance of Rs.1,000/-.

14. PW1 has specifically stated that the accident had taken place due to the rash and negligent driving of the driver of the offending van. The police investigated the case and chargsheet under Section 279/304A IPC was also

filed against the driver the offending vehicle (van). The same has not been rebutted by the driver of the offending vehicle.

15. The appellant failed to examine any witness to prove that the other vehicle involved in the accident was also contributed to the accident in question.

16. As far as the issue of interest is concerned, this issue is left open in this appeal, which shall be decided in the appeal filed by the claimants.

17. Accordingly, finding no merit in the instant appeal, same is accordingly dismissed.

18. The statutory amount be released in favour of the appellant and the balance compensation amount be released in favour of the respondents / claimants on taking steps by them.

SURESH KAIT, J MARCH 27, 2014 jg