Shriram General Insurance Co Ltd vs Mina Devi & Ors
2014 Latest Caselaw 5058 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     MAC.APP. 909/2014

                                        Date of decision : October 10, 2014

      SHRIRAM GENERAL INSURANCE CO LTD       ..... Appellant
                  Through  Mr.K.L.Nandwani, Advocate.

                         versus

      MINA DEVI & ORS                                    ..... Respondents
                    Through None.
      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH
                   ORDER

JAYANT NATH, J(Oral)

CM No. 16775/2014 (exemption) Exemption is allowed subject to just exceptions.

MAC.APP. 909/2014 and CM No.16774/2014 (stay)

1. The present appeal is filed by the appellant Insurance Company seeking to impugn the Award dated 22.07.2014.

2. The brief facts leading to initiation of proceedings under Section 166 of the Motor Vehicles Act, 1988 are that Sh.Sunil Kumar Ray suffered fatal injuries in a road accident that took place on 14.08.2013. The deceased was going on foot in front of Tehkhand Bus Depot, Maa Anand Mai Marg, Okhla, Phase-I, New Delhi. He was hit by the vehicle in question.

3. Based on the evidence on record the Tribunal concluded that the deceased died on account of an accident that took place due to rash and negligent driving of the driver of the offending vehicle respondent No.6. On

compensation, the Tribunal awarded a total compensation of Rs.17,73,000/-.

4. Learned counsel appearing for the appellant submits that the Tribunal has wrongly concluded that the accident took place due to the rash and negligent driving of the offending vehicle. He submits that in fact no accident took place with the offending vehicle and it was a case of hit and run. He further submits that even otherwise while calculating loss of dependency the Tribunal noted that the deceased was working as a Security Guard and based on the minimum wages for a matriculate assessed the income at Rs.9,386/-. He submits that as the deceased was more than 40 years of age, the Tribunal has wrongly awarded 30% increase to the assessed income for future prospects to compute loss of dependency which was calculated at Rs.15,37,426/-.

5. As far as the issue of negligence is concerned, the Tribunal relying upon the evidence of PW-1 Smt. Mina Devi the IO R3W1-ASI Jagat Singh, copy of the FIR and copy of the challan concluded that the accident took place due to the rash and negligent driving of the offending vehicle.

6. The Tribunal noted that PW-1 Smt. Mina Devi has deposed that on 14.08.2013 the deceased was going on foot at Okhla Phase-I, New Delhi and was hit by respondent No.6, the driver of the offending vehicle with great force. The said witness was not cross-examined by the owner and the driver of the offending vehicle. Nothing material came from the cross-examination by the appellant Insurance Company. The Tribunal also relied upon R3W1 ASI Jagat Singh who has said that he was the second investigating officer of the FIR concerned. He further said that he has filed the final report, chargesheet under Section 173 Cr.P.C. and the trial against Respondent No.6 is going on in the court of Metropolitan Magistrate, Saket and that the

offending vehicle was the concerned truck. The Tribunal noted that the deceased was taken to the hospital by Head Constable Banwari Lal who was posted at the picket near the place of the accident. As per R3W1the said Sh.Banwari Lal had confirmed that respondent No.6 was present at the spot after the accident but ran away from the spot and could not be apprehended. The said respondent No.6 was later arrested. The said witness filed copy of the FIR, site plan, arrest memo of the driver, seizure memo of the offending vehicle and mechanical inspection report of the offending vehicle.

7. Learned counsel appearing for the appellant has not been able to point out any evidence on record to contradict or to persuade me to come to a finding different from the findings recorded by the Tribunal.

8. I may note the judgment of the Supreme Court in the case of N.K.V. Bros. (P) Ltd. vs. M. Karumai Ammal and Ors., AIR 1980 SC 1354 wherein in Para 3, the Court held as follows:-

"3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of

culpable driving of public transport must bring owner and driver to their responsibility to their 'neighbour'. Indeed, the State must seriously consider no fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals. We must remember that judicial tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for state relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The states must appoint sufficient number of tribunals and the High Courts should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many states are unjustly indifferent in this regard."

9. Hence, in view of the above, there is no merit in the first submission of the learned counsel for the appellant that it was a case of hit and run.

10. Coming to the issue of grant of future prospects, the Tribunal has noted that the deceased was working as a Chowkidar. As per PW-1, he was earning Rs.10,000/- per month. The Tribunal has assessed the income based on minimum wages for a matriculate which were at the relevant time were Rs.9,386/-. The Tribunal added 30% for future prospects and a deduction of 1/4th was made towards personal and living expenses. Hence, loss of dependency was calculated at Rs.15,37,426/-. The total award amount was calculated at 17,73,000/-.

11. The challenge of the appellant to the grant of 30% future prospects is clearly without merits. I can take judicial note of the fact that minimum wages for a matriculate worker in 2002 were Rs 3115.4 P.M. and in 2012

were Rs.8528/- P.M. It is obvious that the prescribed minimum wages have more than doubled in ten years.

12. 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 between 40 to 50 years 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.

14. In the case of V.Mekala vs. M.Malathi & Anr., 2014 ACJ 1441, the Supreme Court in the case of injury of a student who was studying in Class XI aged 16 years had awarded 50% increase for future prospects.

15. There is also no merits in the second submission of the Appellant regarding grant of future prospect. The appeal is dismissed.

16. The Statutory Amount, if any, deposited by the appellant at the time of filing of the appeal may be refunded to the appellant.

JAYANT NATH, J OCTOBER 10, 2014 rb