Delhi High Court
The Oriental Insurance Co Ltd vs Bhagwat Singh & Ors on 17 November, 2014
$~A-52 & 56
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 17.11.2014.
+ MAC.APP. 1039/2014
THE ORIENTAL INSURANCE CO LTD ..... Appellant
Through Mr.J.P.N. Shahi, Advocate.
versus
BHAGWAT SINGH & ORS ..... Respondents
Through None.
+ MAC.APP. 1044/2014
THE ORIENTAL INSURANCE CO LTD ..... Appellant
Through Mr.J.P.N. Shahi, Advocate.
versus
CHANDRA PAL SINGH & ORS. ..... Respondents
Through None.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. The present appeals are filed by the appellant impugning the common
award dated 26.07.2014. MAC.App. 1039/2014 is filed pertaining to the death
of Sh.Vishnu @Bishwender. MAC.App.1044/2014 is filed relating to the death
of Sh.Bijender Kumar.
2. The brief facts as narrated which led to the filing of the present appeals
are that on 14.07.2012, the deceased Sh. Vishnu was going to Agwanpur,
Faridabad from Chirag Delhi after loading malwa in the vehicle in which he
was working as a helper. When the said vehicle reached Maa Anand Mai Marg
near Crown Plaza Hotel at midnight, suddenly the offending vehicle i.e. truck
trolla driven by Respondent no. 3 at a very high speed and in a rash and
negligent manner hit the vehicle in which Sh.Vishnu was travelling. The
offending vehicle then hit the bicycle on which Sh.Bijender Kumar was
travelling.
3. The injured were taken to AIIMS Trauma Centre, New Delhi. Both the
deceased persons died during treatment.
4. Based on the evidence on record the Tribunal noted that the accident
took place due to rash and negligent driving of Respondent no. 3.
5. On compensation, in MAC. App. 1039/2014 pertaining to deceased
Vishnu, the Tribunal awarded the following compensation:
Loss of Dependency Rs.9,97,776/-
Loss of love & affection Rs.1,00,000/-
Funeral expenses Rs.25,000/-
Loss of estate Rs.10,000/-
Total Rs.11,32,776/-
6. The Tribunal based on the evidence on record took the salary of the
deceased based on the minimum wages for a matriculate as Rs.8,528/- at the
time of the accident. 50% was added to the income of the deceased as he was
aged less than 40 years. Further, 1/2 was deducted towards personal and living
expenses as the deceased was unmarried. Applying the multiplier of 13 based
on the age of the mother of the deceased the loss of dependency was calculated
as Rs.9,97,776/-.
7. In MAC.App. 1044/2014, (relating to deceased Bijender Kumar) the
Tribunal awarded the following compensation:
Loss of dependency Rs.6,27,588/-
Loss of love & affection Rs.1,00,000/-
Funeral expenses Rs.25,000/-
Loss of estate Rs.10,000/-
Total Rs.7,62,588/-
8. In the case of the deceased Sh.Bijender Kumar, the Tribunal assessed
the income of the deceased based on minimum wages of an unskilled worker on
the date of the accident as Rs.7,748/-. An amount of 50% was added to the
income for future prospects as the deceased was less than 40 years old. 1/2 was
deducted towards personal expenses as the deceased was a bachelor. Applying
the multiplier of 9 based on the age of the mother of the deceased the loss of
dependency was calculated as Rs.6,27,588/-.
9. Learned counsel appearing for the appellant has impugned the award in
both the appeals on common grounds being firstly, that the Tribunal has erred
in adding future prospects to the income of both the deceased to calculate loss
of dependency as their income was not fixed/stable. Secondly, he contends that
the Tribunal has wrongly held that the accident occurred due to the rash and
negligent driving of the offending vehicle, whereas, this is a case of
contributory negligence.
10. On the issue of future prospects, I can take judicial note of the fact that
minimum wages for an unskilled worker in 2002 were Rs.2667.4 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.
11. 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.
12. 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.
13. 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).
14. 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.
15. In view of the above, there are no reasons to differ with the reasoning of
the award granting 50% increase on account of future prospects.
16. Coming to the issue of contributory negligence argued by the appellant,
the Tribunal took into consideration the evidence of PW1 and PW2, according
to which the accident was caused due to the rash and negligent driving of the
driver of the offending vehicle which came at a very fast speed without
following any traffic rules. The copies of FIR, Site plan, arrest memo, seizure
memo, mechanical inspection report were placed on record before the Tribunal.
The Tribunal further noted that the driver of the offending vehicle has not cared
to enter into the witness box and explain his version regarding the accident.
Relying on the evidence on record and the record of the criminal proceedings,
the Tribunal held that the accident was caused due to rash and negligent driving
of the offending vehicle.
17. This court in the case of Cholamandalam MS General Insurance Co.
Ltd. vs. Smt. Kamlesh and Ors. 2009 (3) AD (Delhi) 310 held that where a
driver does not enter the witness box, an adverse inference can be drawn against
him.
18. Further this court in the case of National Insurance Company Ltd. vs.
Pushpa Rana, 2009 ACJ 287 held that where a chargesheet is filed against the
driver, a tribunal can relying upon the charge sheet, FIR and other
accompanying documents reach to a conclusion about the rash and negligent
driving of the offending vehicle.
19. In the light of the evidence placed on record and the judgments
mentioned above, I see no reason to differ with the said finding of the Tribunal.
20. The present appeal stands dismissed.
21. In case any statutory amount was deposited by the appellant at the time
of filing of the appeal, the same may be refunded to the appellant.
JAYANT NATH, J.
NOVEMBER 17, 2014
Sh
