Shriram General Insurance Co Ltd vs Gore Lal & Ors
2014 Latest Caselaw 4334 Del

$~A-6
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     MAC.APP. 166/2011
                                               Date of decision: 10.09.2014
      SHRIRAM GENERAL INSURANCE CO LTD                     ..... Appellant
                          Through      Mr.Pankaj Seth, Advocate.

                          versus

      GORE LAL & ORS                                    ..... Respondents
                   Through             Mr.Prabhat Kaushik, Advocate for R-
                                       1 to 5.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. Learned counsel for the appellant submits that he needs an adjournment to move an application to amend the appeal as inadvertently the grounds pertaining to there being no sufficient evidence on record for the Tribunal to conclude that the accident took place on account of negligence of the driver have not been pleaded. In the alternative, learned counsel further submits that the plea he seeks to raise is only a legal plea and he can make submissions based on evidence already on record and does not need to lead any additional evidence on this ground.

2. Learned counsel appearing for respondents No.1 to 5 strongly opposes the adjournment saying that at the time of filing of the appeal no such plea was raised.

3. A perusal of the Award shows that the issue No.2 was framed as to whether the deceased Smt. Guddo Devi as pillion rider sustained fatal injuries due to rash and negligent driving of Sh.Nihal Singh while driving the motorcycle. The issue was answered stating that the accident took place due to the rash and negligent driving of the driver of the motorcycle.

4. Hence the issue No.2 already covers the contention raiased by learned counsel for the appellant. In the interest of justice, the appellant is permitted to raise the plea of there being no sufficient evidence on record for the Tribunal to conclude that the accident took place due to the rash and negligent driving of the driver of the offending vehicle.

5. At this stage, learned counsel appearing for respondents No.1 to 5 submits that he does not need an adjournment and is ready to argue the matter including the additional ground which now the appellant proposes to raise/argue.

6. Having heard the learned counsels for the parties, I will now dispose of the appeal. The brief facts are that the deceased Guddo Devi on 24.04.2010 was going as pillion rider on a motorcycle which was driven by her brother-in-law, respondent No.6. Respondent No.6 was said to be driving the vehicle in a rash and negligent manner. The deceased fell down from the motorcycle and died. The tribunal framed the following issues:

1. Whether respondent no.3 is not liable to pay compensation as driver of the offending vehicle was not holding the valid and effective driving license as stated in para 1 of written statement of respondent no.3? OPR-3

2. Whether the deceased Smt. Guddo Devi as pillion rider had sustained fatal injuries on 24.04.2010 at B.C. Block, corner Main Road, Camp No.4,

Jwalapuri, New Delhi due to rash and negligent driving of respondent no.1 Sh. Nihal Singh while driving Motorcycle bearing registration No. DL-4S- BK-3189? OPP

3. Whether the petitioners are entitled to any compensation? If so, to what amount and from whom? OPP

4. Relief.

7. On Issue No.1, the tribunal concluded that respondent No.6 has failed to produce his driving licence and the police have also filed a charge sheet against him for an offence under Section3/181 of MV Act. Based on these facts, the tribunal directed the insurance company to make payment but granted recovery rights to the appellant company.

8. On issue No.2 (wrongly described as 'Issue No.1' in the Award), the tribunal held that respondent No.6 was driving the vehicle in a rash and negligent manner.

9. On compensation/Issue No.3, the tribunal awarded a total compensation of Rs.11,37,584/-. Loss of dependency was taken as Rs.9,97,584/-. Rs.25,000/- was awarded for funeral charges, Rs.1,00,000/- towards loss of love and affection, Rs.10,000/- for loss of consortium and Rs.5000/- towards loss of estate. The tribunal took minimum wages of unskilled labourer at the relevant time as Rs.5,278/-. The same was enhanced by 50% on the basis of inflation. 1/4 th of amount was deducted on account of the expenditure on the deceased that she would have incurred on herself. Applying the multiplier of 14, the loss of dependency was calculated at Rs.9,97,584/-.

10. Learned counsel appearing for the appellant strenuously urges that there is absolutely no evidence to show that respondent No.6 who was

brother-in-law of the deceased was driving the vehicle in a rash and negligent manner. He submits that a perusal of the FIR and the charge sheet would show that it merely records that the deceased fell down, without recording anywhere that it was a case of rash and negligent driving. The tribunal, also he submits, has not cared to deal with the facts, and simply based on the facts that FIR and Challan have been filed, concluded that the accident took place due to negligence of respondent No.6.

11. He further submits that the deceased was not earning inasmuch as the evidence on record is contradictory. He points out the evidence of PW1 and the averments in the claim petition where it is said that the deceased was making envelops and earning Rs.5,000/- per month. In another affidavit which was filed before the police, it is said that the deceased was earning Rs.1800/- per month while making envelops. He further submits that the tribunal has erroneously after having taking minimum wages, enhanced the same by 50% for future prospects. He submits that even if for some reason, this Court in view of the judgment passed recently is inclined to grant future prospects, keeping in mind the fact that the age of the deceased was 43 years, at best, future prospects would have been granted as 30% and not 50%.

12. As far as the issue of negligence is concerned, it is true that the Tribunal has not dealt in detail with the facts. The Tribunal has concluded about the negligence based on the fact that the chargesheet has been filed under section 279/304A IPC against the driver of the offending vehicle. The Tribunal relied upon the judgment of this Court in the case of National Insurance Company Ltd. vs. Pushpa Rana, 2009 ACJ 287.

13. In my opinion, there are no reasons to differ with the view of the

Tribunal. This Court in the case of National Insurance Company Ltd. vs. Pushpa Rana (supra) has clearly held that the chargesheet and other accompanying documents and the criminal case would be sufficient to reach the conclusion that the accident took place due to the rash and negligent driving of the offending vehicle. Reference may also be had to the judgment of the Division Bench of the Madhya Pradesh High Court in the case of Basant Kaur & Ors. vs. Chatarpal Singh & Ors. 2003 ACJ 369 MP (D).

14. The deceased was a pillion rider on the motorcycle which was stated to be driven by her brother in-law Nihal Singh/respondent No.6 in a rash and negligent manner. She fell off the motorcycle and received injuries which resulted in her death.

15. The statement of the driver Nihal Singh was recorded by the police which is Ex.PW1/14. In the said statement he confirms that the deceased was a pillion rider when he was going on the motorcycle on the said date and that he was going to drop her. He further states that he was going at a fast speed and did not slow his motorcycle because of which the deceased fell down and received injuries which caused her death. It is clear from the said statement that he was driving the vehicle at a very fast speed and the deceased fell down from the motorcycle.

16. Even otherwise, principles of res ipsa loquitor would apply to the facts of the case. The deceased would have fallen off the motorcycle and died due to injuries sustained normally in case the motorcycle was being driven in a rash manner at a very high speed. If the motorcycle had been slow, it is unlikely that she would have died because of injuries sustained due to falling off the motorcycle.

17. A perusal of the site map Ex.PW1/8 also shows that the deceased has

fallen near a crossing. Normally, one would expect the vehicle to slow down in a crossing but it appears that the driver of the offending vehicle Nihal Singh was driving in a fast speed not even caring for the fact that he had crossed the crossing.

18. In the light of the above, there are no reasons to differ with the view of the Tribunal.

19. Coming to the next submission of learned counsel for the appellant, namely, that the deceased was not earning much. A perusal of the affidavit by way of evidence of Shri Gore Lal the husband of the deceased shows that he has said that she was earning Rs.5,000/- per month by preparing envelopes at home. The affidavit is in English but the deponent has signed in Hindi. Similar is the position regarding the affidavit which is attested on 15.5.2010 which appears to have been filed before the police and states that the deceased was earning Rs.1,800/- per month. This affidavit is also in English but is signed in Hindi by Shri Gorelal. It is obvious that the husband Shri Gore Lal does not appear to be highly educated. There is nothing to show that what he was signing was explained to him in the language he understands. In all probability the affidavits were prepared by somebody else. Merely because the two affidavits filed, one before the Tribunal and one before the police have different statements regarding the income of the deceased cannot in these facts mean or imply that the deceased was not doing any work whatsoever. The contradiction appears to be inadvertent and cannot lead to a conclusion that the deceased was not working. There is no merit in the said submission of the appellant.

20. The Tribunal has accepted the age of the deceased as 43. The Tribunal has assessed the income of the deceased based on minimum wages for an

unskilled labour at Rs.5,278/- per month which is enhanced by 50% on account of future prospects for the purpose of assessing loss of dependency.

21. In Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54 it was held that future prospects should be 30% where the deceased is between 40- 50 years of age. Hence, the loss of dependency is liable to be accordingly modified. Future prospects would be applicable only @ 30%. Loss of dependency would now hence be Rs.8,64,528/- [( Rs.5,278 + 30% -1/4) x 12 x 14]. Total compensation would be Rs.10,04,528/-.

22. As per interim order dated 30.3.2011 the appellant was directed to deposit the entire award amount with the Registrar General of this Court. On 4.9.2013 this Court directed the Registrar General to release 60% of the deposited amount. All interim orders stands vacated. Let the amount lying deposited be released to the claimants proportionately in the same manner as directed by the Tribunal and as per the present order. The balance amount with proportionate interest be refunded to the appellant.

23. Statutory amount deposited by the appellant at the time of filing the appeal be released to the appellant.

24. Appeal stands disposed of.

JAYANT NATH, J.

SEPTEMBER 10, 2014 rb/ 'raj'/n