Delhi High Court
The New India Insuance Co Ltd vs Om Prakash & Ors on 3 September, 2014
$~A-30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 3th September, 2014
+ MAC.APP. 799/2014
THE NEW INDIA INSUANCE CO LTD ..... Appellant
Through Mr.J.P.N.Shahi, Adv.
versus
OM PRAKASH & ORS ..... Respondent
Through
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 30.7.2014. The claim petition was filed
by respondents 1 to 3 the parents and sister of the deceased Shri Sanjay
Kumar.
2. The brief facts are that on 6.8.2010 the deceased Shri Sanjay and his
friend Shri Kapil Kashyap were going from Delhi to Haridwar to bring
Kawad on a motorcycle. The motorcycle was driven by Shri Kapil
Kashyap. At district Bijnour, U.P., they were hit by a truck driven by
respondent No.4. Both fell down on the road and sustained injuries. During
his treatment, Shri Sanjay died on 17.8.2010.
3. Based on the evidence on record the Tribunal concluded that the
accident took place due to the rash and negligent driving of respondent
No.4.
4. On compensation the Tribunal awarded the following compensation:-
"Loss of financial dependency Rs.11,98,800/-
Loss of love and affection Rs.1,00,000/-
Loss of Estate Rs.0,10,000/-
Funeral Expenses Rs.0,25,000/-
Total Rs.13,33,800/-"
5. Learned counsel appearing for the appellant has made three
submissions to impugn the Award stating that in view of the said infirmities
the award is liable to be set aside. He firstly submits that there is no
negligence proved on the part of the offending vehicle on record and hence
the claim petition awarding compensation has been wrongly allowed. He
secondly submits that even assuming that there was negligence, the Tribunal
while computing loss of dependency has wrongly taken the multiplier based
on the age of the deceased whereas the deceased was a bachelor and the
multiplier had to be taken based on the age of the dependents. He further
submits that the Tribunal has erroneously added future prospects to the
computed salary of the deceased while computing loss of dependency.
6. As far as negligence of the offending vehicle is concerned, the
Tribunal has relied upon the evidence of PW-3 Shri Kapil Kashyap who was
driving the motorcycle and who was an eye witness and has also filed a
separate compensation claim. The Tribunal also relied on copies of the
criminal record which show that the driver of the offending vehicle was
arrested and chargesheeted and a criminal trial is going on against him. The
Tribunal also noted that the respondents have not led any evidence in this
regard. The Tribunal relied upon the judgment of this High Court in the
case of National Insurance Company Ltd. vs. Pushpa Rana, 2009 ACJ 287
to conclude that the accident took place due to the rash and negligent driving
of the offending vehicle.
7. The appellants have not been able to show anything to persuade me to
take a different view.
8. The M.P.High Court in Basant Kaur vs. Chatarpal Singh2013 ACJ
369 noted that a criminal case under section 304-A of IPC has been
registered against the driver of the Truck and this fact has been revealed to
the Court based on the information made available under section 158 (6) of
the Motor Vehicles Act, 1988 to the Tribunal. Based on these facts the Court
awarded compensation to the claimant. In that case also the claimants had
pleaded that the accident took place due to the rash and negligent driving of
the driver of the offending vehicle.
9. The Delhi High Court in National Insurance Company Ltd. vs.
Pushpa Rana, (supra) held that copy of the FIR, the chargesheet pursuant to
investigation of police under section 279/304-A IPC was sufficient proof to
reach the conclusion that the driver of the offending vehicle was negligent
inasmuch proceedings under Motor Vehicles Act are not akin to proceedings
in a civil suit and hence strict rules of evidence are not required to be
followed.
10. One can also not ignore that the driver of the offending vehicle did
not bother to lead any evidence. This High Court in the case of
Cholamandalam MS General Insurance Co. Ltd. vs. Smt. Kamlesh and
Ors. 2009 (3) AD (Delhi) 310 has held that an adverse inference can be
drawn in case the driver of the offending vehicle does not enter the witness
box.
11. Hence, there is no merit in the contention of the appellant regarding
there not being sufficient proof to prove that the accident took place due to
the negligence of the offending vehicle. The evidence of PW-3 and the
record of the criminal case are sufficient proof of negligence of the
offending vehicle.
12. Coming now to the contention of the appellant pertaining to
computation of loss of dependency i.e. regarding selection of the multiplier
and addition of future prospects. The tribunal selected the multiplier based
on the age of the deceased who was 22 years of age on the date of the
accident. The Tribunal took a multiplier of 18. The Tribunal also noted that
the deceased was a salesman in Payal Embroiders, Kamla Nagar, New Delhi
and was getting a salary of Rs.7,400/- per month. The income was accepted
based on the evidence of PW-2 the employer of the deceased. The Tribunal
added 50% for future prospects.
13. Coming to the contention of the learned counsel for the appellant
regarding wrongful addition of 50% for future prospects, I can take judicial
note of the fact that minimum wages for an unskilled worker in 2002 were
Rs 2679.70/- 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.
14. In case of Rajesh & Ors. vs. Rajbir Singh & Ors. (supra), 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.
15. In the case of V.Mekala vs. M.Malathi & Anr., 2014 ACJ 1441, the
Supreme Court in the case of a student who was studying in Class XI aged
16 years had awarded 50% increase for future prospects.
16. In the facts and circumstances of this case, the Tribunal was justified
in adding 50% to the income of the deceased based on future prospects due
to price rise. There is no merit in the contention of the appellant regarding
adding to the assessed income on account of future prospects/price rise by
50% while computing loss of dependency.
17. Regarding the next contention of the learned counsel for the appellant,
the multiplier which has been taken on the basis of the age of the deceased
and not on the age of the dependents, this Court in the case of Mohd.
Hasnain & Ors. vs. Jagram Meena & Ors, MANU/DE/0715/2014; 2014
(142) DRJ 303 held that the multiplier has to be based on the age of the
deceased. That was a case where the age of the deceased was 39 years.
18. This Court in the said case of Mohd. Hasnain & Ors. vs. Jagram
Meena & Ors (supra) relied on the judgments of the Supreme Court in case
of M. Mansoor vs. United India Insurance Co. Ltd., MANU/SC/1042 and
the case Amrit Bhanu Shali & Ors. vs. National Insurance Co. Ltd. & Ors.
MANU/SC/0537/2012. In the later case, the Supreme Court held as
follows:-
"15. The selection of multiplier is based on the age of
the deceased and not on the basis of the age of the
dependants. There may be a number of dependants of
the deceased whose age may be different and,
therefore, the age of the dependants has no nexus with
the computation of compensation."
19. M. Mansoor vs. United India Insurance Co. Ltd (supra) was a case
where the deceased was a bachelor of 24 years of age and the Supreme
Court held that the selection of the multiplier is based on the age of the
deceased and not the age of the dependants. Further, in the case of Amrit
Bhanu Shali & Ors. vs. National Insurance Co. Ltd. & Ors. (supra) the
deceased was a bachelor aged 26 years and the Court applied the multiplier
of 17.
20. In view of the said judgment passed by this Court, following the
judgments of the Supreme Court, the Tribunal was right in taking the age of
the deceased to determine the appropriate multiplier.
21. There is no merit in the submission of the learned counsel for the
appellant. The appeal is dismissed.
22. The statutory amount if any deposited by the appellant at the time of
filing of the appeal may be refunded to the appellant.
SEPTEMBER 03, 2014/N JAYANT NATH, J
