New India Assurance Co Ltd vs Ved Pal Singh & Ors
2014 Latest Caselaw 4490 Del

$~A-9
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                Date of decision : September 16,2014
+     MAC.APP. 118/2012
      NEW INDIA ASSURANCE CO LTD         ..... Appellant
                      Through Mr.L.K.Tyagi, Adv.
               versus
      VED PAL SINGH & ORS                        ..... Respondent
                      Through Mr.Vivek Kumar, Adv. for R-1 to R-3

      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 18.11.2011. The brief facts which give rise to filing of the claim petition under section 140 & 166 of the Motor Vehicles Act, 1988 are that Mr.Yogender Kumar was going on his motorcycle on 5.9.2008. When he reached opposite Sugar Mill, Meerut Road, Baghpat, he was hit by a bus stated to be driven rashly and negligently. Later on the next day i.e. on 6.9.2008 he succumbed to his injuries.

2. Based on the evidence on record the Tribunal framed the following issues:-

"1.Whether Sh.Yogender Kumar sustained fatal injuries due to rash and negligent driving of bus No.UP-17-B-4454 by R1? OPP

2. Whether the alleged accident was not caused by respondent No.1 and if so to what effect? OPR1 and R2

3. Whether the petitioners are entitled to get any compensation,

if so, from whom and of what amount?

4. Relief."

3. On issues No.1 and 2 the Tribunal relying on the evidence of PW-2 the brother of the deceased who was an eye witness held that Shri Yogender Kumar died in the accident due to the rash and negligent driving of the driver of the offending vehicle namely respondent No.4.

4. On compensation the Tribunal awarded a total compensation of Rs.16,03,900/-. Rs.15,78,909/- was awarded for loss of dependency. Rs.10,000/- towards loss of estate, Rs.10,000/- towards loss of consortium and Rs.5,000/- towards funeral expenses.

5. Learned counsel appearing for the appellant assails the award on two grounds. He firstly submits that it is a case of head on collision between the motorcycle and the offending bus and hence it is a case of contributory negligence and 50% compensation is not liable to be paid by the appellant. He further submits that the widow of the deceased remarried within two years of the accident and hence would not be entitled to be treated as a dependent of the deceased. He submits that the father would also not be a dependent and the mother would be the only dependent. Hence, he submits that deduction of 50% is to be made for expenses on himself by the deceased while computing loss of dependency whereas the Tribunal has deducted 1/3rd for personal and living expenses of the deceased.

6. As far as the issue of contributory negligence is concerned, PW-2 Shri Nagender Singh in his affidavit by way of evidence has clearly said that he was travelling in a separate motorcycle alongwith his uncle Shri Sompal Singh. He stated that they were going alongwith the deceased Yogender Kumar but in

separate motorcycle. Shri Yogender Kumar stopped his motorcycle on the side of the road trying to pick his mobile phone and was hit by the offending vehicle which was trying to overtake another bus. The two buses were running at a very high speed and due to the attempt of the offending vehicle to overtake the other bus the driver of the offending vehicle could not control his bus and he hit the motorbike of Yogender Kumar from the front side and crushed the motorbike. The deceased and the motorcycle were dragged for 100 meters. In his cross-examination he has stated that he was at a little distance away from the spot and saw the accident. He has reiterated that the accident took place as the driver of the offending vehicle was trying to overtake another bus. He has further said that the deceased was standing on the Kacha Road besides the main road. He has denied that the deceased was standing on the road and talking on the mobile.

7. In view of the clear and unrebutted testimony of PW-2 an eye witness, there are no reasons to differ with the views expressed by the Tribunal. The first contention of the appellant that it is a case of contributory negligence is accordingly rejected as there is no evidence to show that it is a case of contributory negligence.

8. Coming to the second point, about remarriage of the widow. The widow remarried on 1.7.2010. The Tribunal relied upon a judgment of this High Court in the case of DTC vs. Meena Kumar ACJ 2011 1211 to hold that remarriage of the widow will not deprive her from compensation on the death of his/her spouse.

9. Reference may also be had to the judgment of Madras High Court in the case of National Insurance Co. Ltd., rep. by its Branch Manager, Kottai

Station Road, Trichy vs. Nelphona and Ors., 2014 ACJ 96, where the Court regarding compensation in case of remarriage of widow held as follows:

"11. Apex Court in the case of G.S.R.T.C. Ahmedabad v. Ramanbhai, has held as follows:

"Under Section 166 of the Motor Vehicles Act, it is provided that any of the legal representatives can file the claim petition. Widow even after remarriage continues to be the legal representative of her husband as there is no provision under the Hindu Succession Act or any other law which lays down that after remarriage she does not continue to be the legal representative. The right of succession accrues immediately on the death of husband and in the absence of any provision she cannot be divested from the property vested in her due to remarriage.

It is understandable that life of a widow, after the death of her husband, in the family cripples abnormally. Generally, she is subjected to all kinds of indignities, compelling her to leave and fall back on parents where she is taken to be an eye-sore by the families of her brothers, particularly when parents are not alive, and even if they are alive they can hardly look after her due to old age. With this background, it is considered necessary that a widow marries as early as possible. Therefore, in a case she has done so, her claim for compensation cannot be defeated by remarriage. It would be highly improper to compel her to lead a life of a widow till she receives the compensation.

There is one more aspect of the matter. it is well known fact that in our society, the life of a widow becomes miserable. If she has no financial support she has to survive on the mercy of other relations

which expose her to any kind of exploitation or to adopt immoral ways for her survival. Instead of doing that, if she remarries then that can give her a way to lead her life in more respectable manner. this option is legally permissible and therefore, should be encouraged and the widow should not be punished by depriving her from compensation for the death of her husband."

14. Widow remarriage, The social change is an inevitable phenomenon of every society. Whether the social change comes through legislation or through judicial interpretation, it indicates the change in the accepted mode of life or perhaps a better life. The changing patterns of life do have an impact on the law and life of a given society and the law must keep pace with the changing socio-economic trend in the Society in other words the law should be an instrument of social change. Thus, social justice provides for a potential force for attainment of a progressive society.

15. But for the untimely death of her husband she would not have an occasion to think of remarriage. It is not a case of remarriage on account of divorce or any other reason. Psychological hurdles that the widow will face on account of remarriage and other relevant factors are also to be taken into consideration. The word dependency and legal representative should receive a pragmatic interpretation, so that the widow remarriage, which is a public policy did not take a detour. Remarriage should be encouraged so that widow is relieved from social stigma attached to widowhood and social protection would embrace her."

10. In view of the above, I see no reason to differ with the view of the Tribunal. There is no merit in the contention of the appellant. The present appeal is dismissed.

11. Statutory amount, if any, deposited by the appellant at the time of filing

the appeal be refunded to the appellant.

12. Interim order including order dated 31.1.2012 stands vacated.

JAYANT NATH, J

SEPTEMBER 16, 2014/n