The New India Assurance Company ... vs Munesh Devi And Ors.
2014 Latest Caselaw 5143 Del

$~R-13

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of Decision: October 14, 2014

+       MAC.APP. 493/2006

        THE NEW INDIA ASSURANCE COMPANY LTD. ..... Appellant
                  Through: Mr.Shoumik Mazumdar with Mr.Pankaj Singh,
                           Advocates.

                      versus

        MUNESH DEVI AND ORS.                       ..... Respondents
                 Through: Mr.Navneet Goyal with Ms.Rupika Singh,
                          Advocates for Respondents No.1 to 6.

        CORAM:
        HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

1. The present appeal is filed by the Insurance Company seeking to assail the impugned Award dated 17.01.2006.

2. The brief facts for filing of the claim petition under Section 166 and 140 of Motor Vehicles Act are that the deceased Rohtash Kumar was driving his Tata Indica Car from Delhi to Shimla. He was accompanied with his friends Mahinder Singh and Suraj Bhan. A truck said to be driven by respondent No.7 hit the Tata Indica Car which was driven by the deceased. The car was pushed back by about 25 ft. Deceased Rohtash Kumar sustained grievous injuries and succumbed to the same.

3. Based on the evidence on record, the Tribunal held that the accident took place due to rash and negligent driving of the driver of the truck i.e. respondent No.7.

4. On compensation, the Tribunal awarded the following compensation:-

"                                                 (RUPEES)
(i)     Monthly income                               13,000
        (rounded off)

(ii)    Estimated future income                       26,000
        (i)   + (ii)                                  39,000

(iii)   Mean/Average Income                            19,500
(iv)    Annual income                               2,34,000
        (19,500 x 12)
        Less 1/3rd towards personal use               78,000
        And consumption                               ----------

(v)     Annual dependency                           1,56,000
        HENCE:
(a)     Loss of dependency                        18,72,000
        (1,56,000 x 12)

(b)     Loss of Consortium                            20,000
(c)     Loss of Love and Affection
        (10,000/- x 5)                                50,000

(d)     Funeral expenses                               5,000
                                               ____________
TOTAL COMPENSATION                             Rs.19,47,000/-

5. Learned counsel appearing for the appellant submits that the Tribunal has wrongly answered Issue No.1 regarding negligence of the driver of the offending vehicle i.e. respondent No.7. He submits that the conclusion that accident took place due to rash and negligent driving of respondent No.7 is based on misreading of the evidence and the conclusion is incorrect. He has made two further submissions to impugn the findings recorded by the Tribunal. Firstly, he submits that it is as per evidence on record, specially the evidence of respondent No.7, namely, Shri Roop Lal, RW-1, the deceased was heavily drunk and was drinking while driving the vehicle. Hence, he submits that the accident took place on

account of the fact that the deceased was already drunk and continued to drink. He secondly submits that it was Roop Lal, respondent No.7 who got the FIR registered. None of the occupants of the Tata Indica Car who were accompanying the deceased lodged any complaint with the police. He further submits that based on the investigation carried out, the police filed a closure report meaning thereby that respondent No.7, the driver of the car was exonerated by the police. Hence he submits that there is enough evidence on record to conclude that respondent No.7 was not driving the vehicle rashly and negligently.

6. A perusal of the award shows that the Tribunal relied upon the evidence of PW1 Mohinder Singh, who was a passenger in the Tata Indica Car. The Tribunal noted that as per the evidence of PW1, the deceased had maintained the speed of 20 kms per hour on his side of the road. The truck driver came from the upper side and was driving on the wrong side and hit the Tata Indica Car. The Tribunal did not accept the version of respondent No.7 about the deceased being drunk as PW1 had clearly said in his evidence that he is a teetotaler. The Tribunal also noted that the police did not file any complaint against respondent No.7 but noticed that the said fact is not of any significance as the findings recorded by a criminal proceedings would not be binding on the civil court.

7. I may now took at the evidence. PW 1 Mohinder Singh has said that the deceased was driving his car in a normal speed on his side of the road in a proper manner whereas the truck did not give enough space and caused the accident. In his cross-examination, he has denied that the deceased had taken the car on the wrong side. On the issue of drinking, he denied that the deceased was drinking and further states that the deceased was a teetotaler.

8. RW-1 Roop Lal in his affidavit by way of evidence states that the deceased was driving the vehicle in a rash and negligent manner and taking liquor heavily. In his cross-examination, he clearly states that he does not understand English language in which the affidavit is drafted. He has further elaborated that he has

not seen the deceased taking liquor. He only volunteers that two bottles were lying in the car. The relevant portion of his cross-examination is as follows:-

"I have not seen him taking liquor. Vol. bottles were lying in the car. There were two bottles. I do not know as to why the bottles were not recovered by police while seizing the car and the truck. The width of the road at the place of accident is such that three vehicles can pass easily.

.....

It is also wrong to suggest that while driving my truck in a rash and negligent manner. I hit against the Indica car which was coming from the opposite direction at normal pace. It is correct that I had not seen the driver of the car taking alcohol."

9. In view of the evidence on record, in my opinion there are no reasons to differ with the findings recorded by the Tribunal.

10. On the issue of the police having not filed any criminal case against respondent No.7, reference could be had to the judgment of the Supreme Court in the case of Iqbal Singh Marwah & Anr vs Meenakshi Marwah & Anr (2005) 4SCC 370 para 32 of which reads as follows:

32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal Courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein.

11. I may also 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."

12. Accordingly, in my view there is no merit in the submissions of the appellant. The appeal is dismissed.

13. All interim orders stand vacated.

14. Statutory amount if any deposited by the Insurance Company at the time of filing of the appeal, the same may be refunded.

JAYANT NATH, J

OCTOBER 14, 2014/ks