United India Insurance Co. Ltd. vs Rani & Ors.
2014 Latest Caselaw 5029 Del

$~A-19
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of Decision: 09.10.2014

+     MAC.APP. 588/2013

      UNITED INDIA INSURANCE CO. LTD. ..... Appellant
                    Through Mr.Manish Kaushik, Advocate for
                            Mr.K.L.Nandwani, Advocate.

                         versus

      RANI & ORS.                                 ..... Respondents
                         Through      Mr. H.K. Jha, Advocate for R-1 to 8.
                                      Mr.Yogesh Basta, Advocate for R-9.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

1. The present appeal is filed by the appellant seeking to impugn the award dated 06.03.2013.

2. The brief facts are that on 16.02.2010, Mr.Sunil Dutt was going to his duty at NDMC, Connaught Place, Delhi on foot. At Mandi House, he was hit by a motorcycle said to be driven in a rash and negligent manner. Sh.Sunil Dutt fell down and sustained grievous injuries and later succumbed to his injuries. The deceased was working as a Chowkidar in NDMC, He was said to be earning Rs.25,000/- per month.

3. The Tribunal famed the following issues:-

"1. Whether the deceased sustained fatal injuries in the accident which occurred on 16.2.2010 at Mandi House, Metro Station,

Near Nava House, Sikandara Road, New Delhi due to rash and negligent driving of vehicle no. DL-8SS-6526 by respondent No.1, owned by respondent No.2 and insured with respondent No.3? OPP.

2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?

3. Relief."

4. On issue No. 1 the Tribunal based on the evidence of PW-3, the Investigating Officer of the Police and the chargesheet filed under Sections 279/304A IPC concluded that the accident took place due to rash and negligent driving of respondent No.9.

5. On compensation the Tribunal awarded the following compensation:-

       Loss of dependency                               Rs.31,12,208/-
       Funeral Expenses                                    Rs.10,000/-
       Loss of Estate                                      Rs.10,000/-
       Loss of love and affection                          Rs.25,000/-
       Loss of consortium                                  Rs.10,000/-
                          Total                         Rs.31,68,208/-

6. Learned counsel appearing for the appellant submits that there is no evidence to show negligence on the part of the driver of the offending vehicle. He points out that as per the FIR which was filed by the Police, the accident was caused by Mr. Javed Qureshi who was said to be driving a scooter No. DL- 7SAD-7134. It is submitted that suddenly in the chargesheet the offending vehicle has been changed to a motorcycle bearing No. DL-8SS-6525 said to be driven by Mohd. Javed, respondent No. 9. It is stated that this has been done because the scooter which is mentioned in the FIR is not insured with the appellant and to drag the appellant with liability alterations have been done in connivance with the IO. Learned counsel for the appellant further submits that

the Tribunal has wrongly assessed the income of the deceased for purposes of calculating loss of dependency inasmuch as certain allowances which had to be deducted while assessing the salary of the deceased have not been deducted. It is further submitted that it was a case of contributory negligence as the deceased at the time of the accident was under the influence of alcohol.

7. The claimants have examined PW-3, the Investigating Officer-SI Prashant Yadav who has prepared the chargesheet and filed the same. The appellant examined R3W1, the first Investigating Officer-ASI Suraj Mal.

8. There is no doubt that the Tribunal has noted that there is discrepancy in the FIR and the chargesheet. However, the Tribunal notes that explanation given by the witnesses, namely, PW-3 and R3W1 explains the reason for the discrepancy.

9. PW-3-SI Prashant Yadav has exhibited the chargesheet as Ex.PW1/1 to PW-1/14. Relevant portion of the chargesheet clearly explains the investigation details which reads as follows:-

"During the course of the investigation ASI Suraj Mal prepared the site plan, seized the Scooter No. DL-7S AD 7134 and its registration certificate which was found at the spot. ASI Surajmal collected the MLC of deceased and accused Javed Qureshi. He got conducted the Post-mortem and collected the PM report No. 75/2010 in which the doctor opined cause of death. "Ceribral damage consequent upon Blunt force/surface". He recorded the statement of witnesses.

After that the investigation of the case marked to me. During the course of the investigation I examined father of Javed Qureshi, Mohd. Mukeem. As Javed Qureshi was also admitted in the hospital after getting injuries. I recorded the statement of Mohd. Mukeem. As per the statement Javed Qureshi on the day of the accident went out on his Eterno Scooter alongwith his

friends Sohail Qureshi and Naseem @ Nanhe. Sohail came on Pulsar motorcycle. As per his verbal information investigation proceeded.

After that I examined Naseem @ Nanhe whose statement was recorded. He told that Bajaj Pulsar bike was ride by Javed Qureshi and he was sitting as pillion rider. Sohail was riding an Eterno Scooter of Javed Qureshi at the time of the accident. Javed Qureshi hit the pedestrian namely Sunil Dutt (deceased) I arrested Javed Qureshi. Sohail Qureshi was also arrested as he ran away from the spot and got the offending vehicle repaired to hide the evidence. The mechanic Nasir who repaired the motorcycle was examined and his statement was recorded."

10. In the cross-examination done by the counsel for the appellant, the sequence of events as explained in the chargesheet has not been in any manner challenged.

11. On the other hand, one may also see the evidence of R3W1-ASI Suraj Mal. ASI Suraj Mal-R3W1 averred that he found the scooter standing at the accident sport and he had taken the same in his custody. But he further stated that after about one or less than a month he was transferred and further investigation was done by SI Prashant Yadav.

12. In my opinion the chargesheet very clearly explains the course of investigation followed. The investigation show why the charge sheet was filed against respondent No.9 and not against the driver of the scooter.

13. This court in the case of National Insurance Company Limited vs. Pushpa Rana, 2009 ACJ 287 has clearly held that for purposes of assessing negligence of an offending vehicle, the chargesheet filed along with accompanying document would be sufficient proof. Reference may also be had

to the judgment of the Supreme Court in the case of Kishan Gopal & Anr. vs. Lala & Ors. 2013(4) T.A.C. 5 (SC) where the observations are made that registration of FIR and filing of the chargesheet against particular respondents would have a weight in the finding regarding negligence of a particular vehicle for having caused the accident.

14. In view of the above, there is no merit in the said contention of the appellant.

15. Coming to the next submission of the appellant i.e. about the wrong salary having been taken. A perusal of the award shows that the deceased who was working as a chowkidar was getting a conveyance allowance of Rs.87/-, transport allowance of Rs.2,032/- and Rs. 40/- per month as washing allowance. The appellants have stated that this amount has to be deducted.

16. As per PW1/15 the total salary of the deceased including allowances was Rs.17,859/-. The Tribunal has not accepted the washing allowance of Rs.40 and has assessed the income at Rs. 17,819/-. Reference may be had to the judgment of the Supreme Court in the case of National Insurance Company Ltd. vs. Indira Srivastava and Ors., AIR 2008 SC 845 (MANU/SC/8201/2007) where in paragraph 8 the Supreme Court held as follows:-

"8. The term 'income' has different connotations for different purposes. A court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. Loss caused to the family on a death of a near and dear one can hardly be compensated on monitory terms."

17. In view of the above, the conveyance allowance and transport allowance

would be cash in hand available with the family of the deceased. There is no explanation or evidence to the contrary. There is no reason to exclude the same while computing loss of dependency.

18. Coming to the last submission of the appellant i.e. that the deceased was under the influence of alcohol and hence it was a case of contributory negligence. The Tribunal noted that as per the MLC the deceased was smelling of alcohol. However, no attempt was made to take any blood sample to have the extent of alcohol measured. No evidence was also led by the appellant to show that the deceased was under the influence of alcohol and that the accident was caused on account of the deceased being under the influence of alcohol. In the light of the above, the Tribunal did not accept the contention of the appellant.

19. There are no reasons shown to me to disagree with the findings of the Tribunal. There is no merit in the appeal and the same is dismissed.

20. Statutory amount, if any, be refunded to the plaintiff.

21. All interim orders stand vacated.

JAYANT NATH, J OCTOBER 09, 2014 rb