Oriental Insurance Co. Ltd vs Gurmeet Kaur & Ors
2014 Latest Caselaw 5024 Del

$~A-5
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Date of Decision: 09.10.2014
+      MAC Appl. 184/2011
       ORIENTAL INSURANCE CO. LTD..                       ..... Appellant
                              Through    Ms.Manjusha Wadhwa, Ms.Harsh
                                         Lata, Ms.Arpan Wadhawan, Advs.

                     versus

       GURMEET KAUR & ORS.                            ..... Respondents

                   Through              Mr.M.L.Sharma, Mr.Y.R.Sharma,
                                        Mr.Sagar Roy,Advs.

CORAM:
HON'BLE MR. JUSTICE JAYANT NATH


JAYANT NATH, J.(Oral)

1. The present appeal is filed by the appellant-insurance company seeking to impugn the award dated 02.11.2010. The brief facts are that the deceased Kulwant Singh was going as a pillion rider to his office after having taken a lift from a scooter. At Hauz Khas in front of Lakshman Public School, the scooter was hit by a Toyota Qualis. As a result both the deceased and the scooter driver fell down. That moment, a road roller came from behind and crushed the deceased who had fallen on the road. The deceased died on the spot.

2. Based on the evidence on record, the tribunal concluded that the accident took place due to rash and negligent driving by respondent No.6- the driver of the Toyota Qualis. On compensation, the tribunal awarded a

total compensation of Rs.12,63,400/- as follows:

       Loss of dependency                             Rs.11,93,400.00
       On account of Love and affection               Rs.40,000.00
       Loss of Estate                                 Rs.10,000.00
       Funeral Expenses                               Rs.10,000.00
       Loss of Consortium                             Rs.10,000.00
                     Total                            Rs.12,63,400.00

3. Learned counsel appearing for the appellant submits that the finding of the tribunal, holding that the accident took place due to negligent driving of Toyota Qualis, is incorrect. It is submitted that it is a clear case of contributory negligence on the part of the Toyota Qualis and the Road Roller hence the liability has to be shared by and between the insurance companies of the two vehicles. It is urged that the road roller was not keeping proper distance and that is why the accident took place. It is further urged that the licence of the driver of the Toyota Qualis-respondent No.6 was fake and hence there is no liability of the appellant insurance company in any case to pay the award amount.

4. It is lastly urged that the quantum of compensation awarded in any case is on the higher side. It is stated that having assessed the income of the deceased at Rs.6800/- per month, the tribunal has wrongly enhanced the same by 30% on account of future prospects for the purpose of computing loss of dependency. It is also urged that as per the evidence and calculation done by the tribunal, the income of the deceased at best was Rs.6000/- per month and not Rs.6800/- per month as has been wrongly taken by the

tribunal. Hence, it is urged that the compensation awarded has to be reduced accordingly.

5. Coming to the first submission regarding the contributory negligence, I may look first at the evidence of the only eye witness namely Sh. Khazan Singh, the driver of the road roller R4W1. He stated that he has been driving the road roller for the last 22 years and he was, on the particular date, driving the road roller. Suddenly, in front of him a Toyota Qualis hit the scooter because of which the deceased fell down before the road roller which he was driving. There was no time to react to the situation and to prevent the person from being run over.

6. It is further stated that the maximum speed of the road roller at that time was not more than 4-5 km/h. The witness immediately applied brakes but could not stop the road roller. In his cross examination, he has clarified that the driver of the Toyota Qualis was driving rashly and negligently and hit the scooter from behind. Due to the impact, the driver of the scooter fell some distance away whereas the pillion rider fell there only. He reiterates that he tried to stop the road roller by applying brakes. He further clarified had the Toyota Qualis did not hit the scooter there would have been no injury to the pillion rider.

7. Reference may also be had to the site plan which clearly shows that all the three vehicles were going in the same direction. The Toyota Qualis has hit the scooter and severed to the left portion. Possibly the Toyota Qualis was trying to overtake which resulted in the accident.

8. It is noteworthy that the driver of the Toyota Qualis did not enter the witness box. The impugned award was also relied upon by the evidence of the driver of the road roller and has noted that it was not possible for the

driver of the road roller to expect that suddenly a person would fall in front of the road roller without leaving any time to stop the vehicle. Even otherwise, a road roller travels at a slow speed. There are no reasons to disagree with the findings recorded in the award that the accident took place due to negligent driving of the Toyota Qualis

9. As far as the issue of driving licence is concerned, the appellant has led no evidence to show that the driving licence of respondent No.6 Surender Singh, who is now represented by his legal heirs, was fake. Hence, this contention has no merits.

10. As far as the issue of salary of the deceased is concerned, it is true that in the award in para 17, the tribunal notes that the deceased was being paid a salary of Rs.4000/- per month by his employer UMC Manufacturing Pvt. Ltd, and he was working as part time employee at Rs.2000/- per month, yet the tribunal notes the monthly salary at Rs.6800/- per month. Hence, it is urged that there is a obvious mistake and the salary should be at Rs.6000/- per month for assessing the loss of dependency.

11. As per PW4, Rattan Dev, Accountant from UMC Manufacturing Pvt. Ltd, the deceased was drawing a salary of Rs.4800/- per month. Hence, this evidence clearly shows that there is a typographical error in noting by the tribunal that the deceased was drawing a salary of Rs.4000/- per month from UMC Manufacturing Pvt. Ltd. The total salary of Rs.6800/- has been correctly calculated. Hence, there are no reasons to disagree with the award that the income of the deceased at the time of the accident was Rs.6800/- per month.

12. Coming to the issue of future prospects, 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 40 to 50 years of age an addition of 30% should be made in the wages for the purpose of computing loss of future earnings.

13. 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.

14. 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).

15. 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.

16. In view of the above, there are no reasons to differ with the reasoning of the award granting 30% increase on account of future prospects.

17. Hence, there is no merit in the appeal, the same is dismissed. The statutory amount, if any, deposited by the appellant be refunded to the appellant.

(JAYANT NATH, J.) JUDGE OCTOBER 09 , 2014 raj