Delhi High Court

National Insurance Co. Ltd. vs Sukriti Devi & Ors. on 8 May, 2014

Author: Deepa Sharma

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+     MAC.APP. 492/2011

%                                 Date of decision: 08th May, 2014

      NATIONAL INSURANCE CO. LTD.                   ..... Appellants
                         Through:       Mr.Sonia Sharma, adv.

                         versus

      SUKRITI DEVI & ORS.                        ..... Respondents
                    Through:            Mr.Sanjiv Gupta, Adv.

      CORAM:
      HON'BLE MR. JUSTICE DEEPA SHARMA

      JUDGMENT (ORAL)

1. The appellant has assailed the order the learned Tribunal

dated 17th February, 2011 whereby the tribunal has awarded a

compensation of Rs. 18,34,800/-.

2. The brief facts are that on 23.09.2009 deceased Manoj Singh

was coming on his scooter and when he reached at Punjabi Bagh

Flyover, near Railway Line, Punjabi Bagh, one blue line bus

bearing registration no. DL 1PB 1685 being driven by its driver

respondent no.6 in rash and negligent manner came in a very fast

speed and hit against the scooter and as a result the deceased came

under the tyre of the offending vehicle and died at the spot. He

was 31 years of age with sound health. He was married having two

children, wife and parents and was earning Rs.7800/- per month

and was the sole bread earner of the family. After considering all

the facts and circumstances of the case, the tribunal has awarded

the compensation as under:

1. Compensation for loss of dependency Rs.16,84,800/-

2. Compensation for loss of consortium Rs. 10,000/-

3. Compensation for loss of estate Rs. 10,000/-

4. Compensation for funeral expenses Rs. 5,000/-

5.    Compensation for loss of love
      and affection                                    Rs. 1,25,000

                                                      Rs.18,34,800/-

       Less interim compensation (-)                   Rs. 50,000/-

                                                       Rs.17,84,800

3. The appellant has not challenged the findings of the tribunal

that the accident was the result of the rash and negligent driving of

the offending vehicle i.e. the blue line bus. The finding of the

learned tribunal to this effect has thus attained the finality.

4. The only challenge in the appeal is that the tribunal has

wrongly calculated the income of the deceased at Rs.7800/- per

month. It is contended that there was no documentary evidence on

record to prove the income. The documents produced on record

were manipulated and fabricated. The claimants have produced on

record the vouchers of payment of salary allegedly singned by the

deceased, however, the signature of the deceased on each of the

vouchers is different meaning thereby that these vouchers have

been manipulated. It was further argued that the statement of

account Ex.PW1/1 to Ex.PW1/6 show that the deceased was

getting salary of Rs.5300/- per month till 7th May, 2009 and that all

of a sudden the salary was increased to Rs.7800/- and this clearly

creates doubt regarding the genuiness of these vouchers. There is

no other document on record besides these vouchers. It is

contended that in these circumstances the tribunal ought to have

taken Rs.5300/- per month as the salary of the deceased while

calculating the loss of dependency.

5. It is contended on behalf of the LRs of the deceased that the

contention of the insurance company before the tribunal was that

the deceased was not in employment of M/s A.G.Exports, a

partnership firm. It is further contended that the insurance company

did not cross examine the owner of the M/s A.G.Exports who has

been examined by the claimant as PW1 on the point that the last

drawn of deceased was not Rs.7800/- per month.

6. I have given the careful consideration to the findings of the

tribunal on this point and has gone through the record. The

Tribunal has elaborately discussed the evidence produced on record

in order to arrive to the conclusion that the last drawn salary of the

deceased Rs.78,00/- per months. The relevant portion of the

findings of the Tribunal is reproduced as under:

"10. The petitioner in her affidavit Ex.PW3/4 has deposed that the deceased was doing private job and was permanently employed with M/s A.G.Exports, A-110, Phase IV, Udyog Vihar, Gurgaon, Haryana and was earning Rs.7800/- per month. In order to prove the earning capacity of deceased, PW1 Amit Gupta was examined by petitioner who has deposed that he was partner of M/s A.G.Exports engaged in business of fabrics supply. He further deposed that they were having two workers at their concern, one of them was Manoj Singh (deceased) who was working with them for last 6-7 years and was drawing salary of Rs.7800/- per month; after his death in a bus accident his salary for the month of September, 2009 was given to his wife Sukriti. He further clarified that they had never issued any salary certificate to their employees but have been showing the slary paid to their employees in their account books. The salary paid to the employees through voucher and was duly signed by the workers. He

has placed on record the cash voucher w.e.f. April, 2009 to September, 2009 Ex.PW1/1 to Ex.PW1/6. It is deposed by him that all these vouchers were duly signed by Manoj Singh at point X except the voucher Ex.PW1/6 which was signed by his wife. In his cross-examination on behalf of insurance company, he has stated that because of small business they had not issued appointment letter to their workers . He has also stated in cross examination that he can produce the cash vouchers even for the previous period if necessary. He has also clarified that amount of Rs. 7800/- in cash voucher was the salary amount and did not include the conveyance and other allowances . He has deposed in his cross examination that he had been showing the payment to the workers in his Income Tax returns regularly and could submit the proof in that regard . He further deposed that investigator of insurance company inquired from them about the deceased and they had told them that Manoj Singh was working with them and was paid salary. In further cross-examination, he has placed on record a copy of profit and loss account for the year 2008-2009, Ex. PW1/7 along with staff ledger account for the year 2008-09 Ex. PW1/8 . He further clarified that he had filed Income Tax returns regarding these documents Ex. PW1/7 and Ex. PW1/8 and the documents have been audited which means that same has been shown in the income tax returns. In his further cross-examination on 16.11.2010, he has deposed that deceased Manoj Singh was a permanent employee with M/s A.G Exports , a partnership firm and he was working with them for the last 6 years .

11. Ld. counsel for insurance company had argued that the proof of payment of salary and vouchers in that regard has been manipulated and fabricated in order to benefit the LRs of the deceased. Ld. Counsel for petitioner on the other hand has submitted that there is nothing in the cross- examination of PW1 Amit Gupta which may show that the record produced by him was not a record prepared by him in ordinary course of business and was false and

fabricated. Accordingly, seeing the testimony of PW1 Amit Gupta , I am satisfied that the deposition made by him was natural , trustworthy and straightforward. There is nothing in his cross-examination so as to conclude that his deposition has been assailed especially with regard to the payment of salary of deceased through voucher Ex. PW1/1 to Ex. PW1/6 . The said payment has been duly authenticated and audited by ledger accounts and profit and loss account placed on record by PW1 Amit Gupta. Nothing was suggested to PW1 Amit Gupta on behalf of insurance company that the said official record was not prepared in ordinary course of business of M/s A.G Exports where deceased was employed as a permanent employee. On the basis of evidence led by petitioner as discussed above , it is established that at the time of death deceased was earning Rs. 7800/- per month from his salary working with M/s A.G Exports and his service with them was permanent service.

12. Deceased Manoj Singh was employee of M/s A.G Exports stands established from the deposition of PW1 as deceased was working with them for last 6 years and nothing was suggested to PW1 Amit Gupta in cross- examination on behalf of insurance company that the said deceased was not a permanent employee with them and was not working for the last 6 years."

7. I have also carefully gone through the evidence produced

before the Tribunal and it is apparent that the stand of the appellant

has no merit and the tribunal has correctly reached to the

conclusion that the last drawn wages of the deceased were

Rs.7800/- per month.

8. The contention of the appellant that because the signatures of

the deceased differs on each and every voucher, the vouchers are

not genuine has no force. The insurance company had the

opportunity for getting the disputed signatures of deceased on

vouchers examined by the handwriting expert. The court at this

stage cannot presume that the vouchers do not bear the signatures

of the deceased. Neither the tribunal nor this court has any