Oriental Insurance Co Ltd vs Kavita Bansal & Ors
2014 Latest Caselaw 4782 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                         Date of decision: 24.09.2014
+    MAC.APP. 831/2014

      ORIENTAL INSURANCE CO LTD        ..... Appellant
                   Through  Mr.Pradeep Gaur, Advocate.

                         versus

      KAVITA BANSAL & ORS                          ..... Respondents
                  Through               Mr.Navneet Goyal, Advocate for R-1
                                        to 3.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

CM No.14977/2014 (delay)

For the reasons stated in the application, the delay is condoned. The application is disposed of.

MAC.APP. 831/2014

1. The present appeal has been filed by the appellant Insurance Company seeking to impugn the Award dated 29.04.2014 stating that the compensation awarded is on the higher side.

2. The matter came up for hearing on 10.09.2014 when learned counsel for respondent No.1 to 3/caveator/Claimant has entered appearance and opposed the appeal. He was given an opportunity to file all relevant evidence/record of the trial court so that the matter could be heard today. The same has now been filed.

3. The brief facts are that the claim petition was filed under Sections 166 and 140 of the Motor Vehicles Act, 1988 pursuant to the death of Sh.Pawan Kumar Bansal in the motor vehicle accident. On 08.11.2013, the deceased Pawan Kumar Bansal with other co-passengers boarded a bus from Lucknow for Delhi. The bus was said to be driven by its driver/respondent No.4 in a rash and negligent manner in the morning at 4.30 A.M. in District Firozabad, U.P. It is urged that the driver of the bus lost control and struck against a stationary truck with great force. As a result of the collusion, Mr.Pawan Kumar Bansal sitting on the front seat of the bus sustained fatal injuries and died on the spot.

4. Based on the pleadings of the parties the following issues were framed:-

"(i) Whether the deceased Shri Pawan Kumar Bansal had died due to injuries sustained by him in an accident which took place on 09.11.2013 at 4.30 A.M. within the jurisdiction of PS: Sirsaganj, Firozabad, U.P. due to rash and negligent driving of vehicle bearing registration No.UP 17 C 6788 by Respondent No.1?

(ii) Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?

(iii) Relief."

5. On issue No.1 of negligence the Tribunal relied upon the evidence of the eye witness PW-2 Yogendra Singh, the record of the criminal case, namely, PW-2/2 i.e. the chargesheet filed, site plan, etc. which show that the driver of the offending vehicle respondent No.4 was arrested and chargesheeted by the police and is facing trial. The Tribunal also noted that the respondents led no evidence to the contrary. The Tribunal relying upon the judgment of this court in the case of National Insurance Co. Ltd. vs. Pushpa Rana & Ors., 2009 ACJ 287 and the testimony of PW-1 and PW-2

decided the issue in favour of the claimants, namely, that the accident took place due to the rash and negligent driving of the driver of the bus/respondent No.4.

6. On the issue of compensation, the Tribunal awarded a total compensation of Rs.74,34,192/- as follows:-

       Loss of financial dependency           Rs.71,99,192/-
       Loss of Love and affection             Rs.01,00,000/-
       Loss of Estate                         Rs.00,10,000/-
       Funeral Expenses                       Rs.00,25,000/-
       Loss of consortium                     Rs.01,00,000/-
                       Total                  Rs.74,34,192/-

7. The Tribunal noted that the deceased was working as an Assistant Engineer with PWD, Meerut, U.P. and drawing a salary of Rs.75,280/- per month. This was proved by PW-3 Sh. Ashok Kumar Goel, Executive Engineer, PWD, Meerut, U.P. He produced the salary register showing the pay for the month of November 2013(Ex.PW-3/2), the seniority list of the engineers of the Department(Ex.PW-3/4). He testified that the deceased was getting a salary of Rs.75,200/- per month. He confirmed that the date of birth of the deceased was 07.07.1960 and his date of retirement was 31.07.2020. The Tribunal after deducting income tax accepted the income of the deceased as Rs.8,53,659/- per annum. Taking the age of the deceased as 53 years, the multiplier of 11 was adopted. Relying upon the judgment of the Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54, an addition of 15% was added towards future prospects/rise in cost of living. As the deceased was survived by his wife, his son who held to be dependent and his minor daughter, a deduction of 1/3rd was made towards personal and living expenses. Total loss of financial dependency was assessed at Rs71,99,192/-.

8. Learned counsel appearing for the appellant has made four submissions to impugn the award. He firstly submits that it was a clear case of composite negligence and between the offending bus driven by respondent No.4 and the stationary truck. Hence, he submits that as it was a case of composite negligence and the owner of the truck was also liable to pay his share of the compensation. He further submits that despite specific objection, the Tribunal did not adjudicate upon this aspect of the matter. He secondly submits that the Tribunal has wrongly enhanced the income of the deceased by 15% for future prospects/rise in price. He thirdly submits that the assessment has been wrongly made as the deceased was 53 years of age. He would have retired at the age of 60 and a split multiplier should have been used, namely, for the first seven years when the deceased was to remain in service, the income which was assessed at Rs.8,53,659/- per annum should have been multiplied by 7 and for the subsequent period pension @40% of the same should have been used for computing loss of dependency. Learned counsel relied upon the judgment of the Madras High Court in the case of Tamil Nadu State Trans. Corpn. Ltd. vs. Kunjunjamma Mathew & Ors., 2012 ACJ 149. It is fourthly submitted that even if future prospects are to be granted, appropriate deduction for income tax for future prospects should have also been made.

9. Coming to the first submission, learned counsel for the appellant has vehemently relied upon the site plan which is part of the police record. He submits that a perusal of the site plan shows that the offending truck was standing with two wheels on the roads and two wheels off the road. Hence, he submits that as the truck was standing in middle of the road, a finding has to be rendered that the said truck was also partially responsible for the accident. He also submits that the testimony of PW-2 Sh.Yogender Singh is

totally unworthy and cannot be relied upon. He states that a perusal of his cross-examination shows that he was sitting in his hotel and could not see the accident taking place and hence, his testimony stating that the driver of the bus/respondent No.4 was driving the bus in a rash and negligent manner cannot be accepted. Hence, he submits that the matter should be remanded back to the Tribunal for adjudication on the stand of the appellant that the accident took place due to composite negligence.

10. A perusal of the map which is on record at page 70 of the court file, which is prepared by the police does not in any way show that the truck in question was standing half on the road and half off the road. Two wheels of the truck as shown in the map are on the kacha portion of the road. The map does not give the location of the other two wheels on the other side. It cannot be presumed that the said two other wheels are on the road.

11. It is true that PW-2 in his cross-examination by the counsel for the owner/respondent No.5 has said that the truck parked in such a way that one side of the truck was on the road and other side was down the road. It is the own case of the appellant that the testimony of PW-2 cannot be believed as he is not an eye witness. If we take his testimony as a whole, it is against the appellant as he has clearly said that the driver of the bus was driving the same rashly and negligently. His evidence does not help the appellant.

12. Coming to the testimony of PW-2, he in his evidence by way of affidavit said as follows:-

"3. I say that on 09.11.2013, I was present my Hotel and Restaurant. AT about 04.30 a.m. a bus bearing registration No.UP-17C-6788, which was being driven by its driver at a very high speed, rashly negligently, in a zig-zag manner, without proper lookouts, violating the traffic rules and without

blowing any horn came from Kanpur side and lost control over the bus and dashed/hit/struck against a stationary truck No.UP- 83M-9769, which was lying/standing parked in front of Hotel with a greatforce. As a result of this violent impact Sh.Pawan Kuma Bansal who was sitting at Seat No.1 on the front side of the bus sustained fatal injuries and died on the spot.

4. I say that this accident was caused due to rash and negligent driving on the part of the driver of the offending Bus bearing registration No.UP-17C-6788 and an FIR bearing no.348/2013, Main Crime No.571/2013, dated-09.11.2013, U/S- 279/337/304-A IPC has been registered at PS-Sirsaganj, Firozabad, U.P. Had the bus driver been careful and cautious enough this accident could have been averted and the deceased would not have died an unnatural and untimely death in the accident.

13. There is no cross-examination on the above portion of the testimony of PW-2 including by the counsel for the appellant Insurance Company. The said FIR is also registered based on somewhat similar statement of PW-2.

14. The police have also filed the chargesheet against respondent No.4, the driver of the bus only.

15. In view of the unchallenged testimony of PW-2 and the record of the criminal proceedings against respondent No.4, I see no force in the contention of the learned counsel for the appellant that the accident took place due to composite negligence of the bus driven by respondent No.4 and the truck standing off the road. The sketch/map drawn by the police does not help the case of the appellant. The said contention is rejected.

16. Coming to the second contention of the appellant regarding the addition of 15% to the assessed salary of the deceased for future prospects/rise in salary. At the outset it may be clarified that there is no objection by the appellant to the salary as assessed by the tribunal of the

deceased. The objection is only to the addition of 15% for future prospects.

17. The deceased was 53 years old on the date of the death. He had seven years of service left. There is a pay commission expected in 2016. It would be expected that there would have been some increase in his salary over the period of time due to the Pay Commission or rise of DA. To award a nominal increase of 15% is in order for the purpose of coming just and fair compensation. That apart, in view of the judgment of the Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors. (supra), I see no reason to interfere with the said amount awarded to the claimants.

18. Coming to the question of multiplier, learned counsel for the respondents has relied upon the judgment of the Supreme Court in the case of K.R.Madhusudhan & Ors. vs. Administrative Officer and Anr., 2011 ACJ 743 to contend that the Supreme Court has already held that split multiplier is not to be used. That was a case where the deceased was working as a senior assistant in Karnataka Electricity Board and was aged 52 years. The High Court had used the split multiplier, namely, the salary for the first six years was assessed at a different figure. This salary was multiplied by 6 for the balance six years i.e. post retirement the salary was assessed on the pension. The Pension was multiplied by 6. The Supreme Court set aside the order of the High Court and did not approve the use of a spilt multiplier. It also added future prospects. Accordingly, there is no merit in the contention of the learned counsel for the appellant regarding spilt multiplier.

19. On the issue of deduction of income tax for future prospects granted, the contention is devoid of merit and has no basis whatsoever. The same is

rejected. Hence there is no merit in any of the contentions of the appellant. Accordingly, the present appeal being without any merit is dismissed.

20. The statutory amount if any paid by the appellant at the time of filing of the appeal be refunded to the appellant.

JAYANT NATH, J SEPTEMBER 24, 2014 rb