Oriental Insurance Co Ltd vs Asha Devi & Ors
2014 Latest Caselaw 1697 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Judgment delivered on: 28th March, 2014

+      MAC.APP. 927/2011
ORIENTAL INSURANCE CO LTD                ..... Appellant
                 Represented by: Mr. A.K. Soni, Adv.

                      Versus

ASHA DEVI & ORS                                        ..... Respondents
                               Represented by: Mr. I.C. Mishra, Adv. for R1 to
                               R5.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. Vide the present appeal, the appellant has assailed the award dated 29.06.2011, whereby Ld. Tribunal has awarded compensation for an amount of Rs.40,76,760/- with interest @ 7.5% per annum from the date of filing of the Claim Petition till realization of the amount.

2. Ld. Counsel appearing on behalf of the appellant submits that the negligence on the part of the driver of the offending vehicle was not proved, despite the Ld. Tribunal has held that the driver of the offending vehicle was negligent in committing the accident.

3. He submits that the driver of the offending vehicle appeared before the Ld. Tribunal and was examined as R2W1, who stated that on 11.02.2008, he was driving the offending bus bearing no. DL-1LD-6678 and was going from Ballabhgarh to Delhi when a car bearing no. HR-51-V-8118

coming from Delhi side on the same road, being driven rashly and negligently, dashed against his vehicle from the right side. He could not see the driver of the car as it was midnight. He further stated that the accident was caused due to the rash and negligent driving of the driver of the car and there was no negligence on his part.

4. Ld. Counsel further submits that there was a single road and the accident had taken place on head on collision. Therefore, in such eventuality, presumption is that both the vehicles involved in the accident were contributed to the accident and should have been held liable for the negligence.

5. Ld. Counsel further submits that the deceased was getting a gross salary of Rs.25,000/- per month. However, the Ld. Tribunal has not deducted the other allowances and has considered the same as part of salary while calculating the compensation.

6. On perusal of the record and after going through the impugned award, it is revealed that in cross-examination of R2W1, i.e., driver of the offending vehicle, a suggestion was put to him that he was ran away from the spot after the accident, which he denied. He admitted that he went to the police station and lodged a complaint immediately after the accident. However, he also admitted that he was arrested in the criminal case registered vide FIR no. 27/2008.

7. As per the mechanical inspection report, bumper of the offending vehicle was broken. After the investigation, the police had filed a charge

sheet against the driver of the offending vehicle for the offences punishable under Section 279/338/304IPC.

8. As far as the contributory negligence on the part of the other vehicle is concerned, the investigation made by the Police does not suggest that there was any fault on the part of the driver of the other vehicle (deceased). The appellant even failed to place on record the mechanical inspection report of the Alto car, which was alleged to get damaged in the accident. The appellant also failed to prove that the accident was caused as the vehicle of the deceased dashed to the offending vehicle on the right side. Moreover, as per the statement of the eye witness, the accident had caused when the offending vehicle came towards their vehicle and struck against it.

9. The deceased was a Microsoft Engineer and was working with M/s. Chariot Infotech Pvt. Ltd. and was drawing a salary of Rs.25,000/- per month. The appointment letter of the deceased for the post of Assistant Manager, Technical and his salary certificate has been proved. The claimants also examined Ms. Yogita, Manager Operation, M/s Chariot Infotech Pvt. Ltd. as PW3, who proved the salary certificate of the deceased as Ex.PW3/B.

10. The deceased had completed 5 years of service and was a confirmed employee as per the confirmation letter issued by his employer. Moreover, there is no proof filed by the appellant that there was other allowances like the transport allowance in the salary of the deceased. Thus, the Ld. Tribunal has assessed Rs.25,000/- as income of the deceased while calculating the compensation.

11. In view of the facts noted above, I do not find any merit in the instant appeal. Same is accordingly dismissed.

12. It is pointed out by the Ld. Counsel for the claimants that respondent no. Dharam Singh, father of the deceased expired in August, 2011 and his share may be released in favour of respondent no. 3 Roshni Devi, his widow. I note, this fact has been noted in order dated 28.02.2012.

13. In view of above, statutory amount be released in favour of the appellant and the balance compensation amount be released in favour of the respondent nos. 1 to 3 and 5 / claimants and share of respondent no. 4 be released in favour of the respondent no. 3 in terms of order dated 01.11.2011 passed by this court on taking steps by them.

SURESH KAIT, J MARCH 28, 2014 jg