Delhi High Court

United India Insurance Co Ltd vs Sabita Veshin & Ors on 6 April, 2015

$-10 & 11

     *        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                      Decided on: 6th April, 2015

+        MAC.APP. 483/2012
         UNITED INDIA INSURANCE CO LTD            ..... Appellant
                       Through: Mr. Rajesh Dwivedi, Adv. for
                                Mr. A.K. De, Adv.

                                versus

         SABITA VESHIN & ORS                                  ..... Respondents
                       Through:            Mr. Vinod Trisal, Adv.
                                           Mr. Anand Nandan, Adv. with
                                           Mr. D.S. Mishra,Adv. for DTC.
+        MAC.APP. 1093/2012
         SABITA VESHIN & ORS.                                 ..... Appellants
                                Through:   Mr. Vinod Trisal, Adv.

                                versus

         UNITED INDIA INSURANCE CO. LTD.          ..... Respondents
                       Through: Mr. Rajesh Dwivedi, Adv. for
                                Mr. A.K. De, Adv.
                                Mr. Anand Nandan, Adv. with
                                Mr. D.S. Mishra,Adv. for DTC.

         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL
                         JUDGMENT

G. P. MITTAL, J. (ORAL)

1. These two appeals arise out of judgment dated 23.02.2012 passed by

the Motor Accident Claims Tribunal (the Claims Tribunal) whereby

compensation of ` 47,47,400/- was awarded in favour of the legal

representatives of deceased Ajay Veshin, who suffered fatal injuries in

a motor vehicular accident which occurred on 06.04.2009.

2. During inquiry before the Claims Tribunal, it was found that the

accident was caused on account of rash and negligent driving of a bus

bearing registration no.DL-1PB-2137 by its driver Vikas; the Claims

Tribunal accepted the salary of the deceased to be `3,87,540/- per

annum, added 30% towards future prospects, deducted 1/4 towards

personal and living expenses and applied a multiplier of 14 (as per the

age of the deceased) to compute the loss of dependency as

`47,12,400/-.

3. For the sake of convenience, the Appellant in MAC.APP.483/2012

shall be referred to as the Insurance Company and the contesting

Respondents, who were the Petitioners before the Claims Tribunal

shall be referred to as the Claimants.

4. The following contentions are raised on behalf of the Insurance

Company:-

(i) Negligence on the part of Respondent Vikas, driver of the

insured bus bearing registration no.DL-1PB-2137 was not

established, still the Appellant being an insurer was made liable

to pay the compensation; and

(ii) There were number of allowances granted to deceased apart

from the Basic pay of `15,200/- and House Rent Allowance of

`4506/-, the same ought not to have been taken into

consideration to compute the loss of dependency.

5. On the other hand, the learned counsel for the Claimants while

supporting the impugned judgment urges that the compensation

awarded towards non-pecuniary damages, i.e. towards loss of love and

affection, loss of consortium and funeral expenses was on the lower

side.

NEGLIGENCE

6. In order to prove negligence on the part of the DTC bus driver, the

Claimants examined Ashish Kaul PW-2 whereas the DTC examined

Vikas, its driver as R3W2. The main thrust of the argument on behalf

of the learned counsel for the Insurance Company is that initially the

deceased had informed his wife that the DTC bus driver was not at

fault. This question was also raised before the Claims Tribunal and

was dealt with by the Claims Tribunal holding that the deceased had

also stated to his wife Smt. Sabita Veshin that the driver of the DTC

bus was a govt. servant and it would be a question mark on his service

(if a case is registered against him). The Claims Tribunal dealt with

the issue of negligence in para 12 of the impugned judgment which is

extracted hereunder:-

"12. The perusal of FIR shows that a cycle rider took a U-turn and the driver of the DTC Bus bearing no.DL1PB-2137 moved his vehicle towards deceased and scooter of the deceased fell down and the accident took place because of the negligence of the driver of the bus. ThePW-2 has clearly stated that Respondent no.2 was driving the offending vehicle at fast speed, rashly and negligently and hit the scooter of deceased. The testimony of PW-2 Sh. Ashish Kaul is reliable, trustworthy and consistent. Nothing contrary could be elicited during cross-examination of PW-2. The FOR, site-plan, postmortem report and the testimony of the PW-1 and PW-2, taken together fully establish the death of the deceased caused by the injuries sustained by him involving vehicle bearing registration No.DL-1PB-2137 in a road accident. There is nothing on record to dispel the inference that deceased Sh. Ajay Veshin, died on account of injuries sustained by him in a road accident which occurred on 06.04.2009 because of rash and negligent driving of vehicle bearing No.DL-1PB-2137 being driven by its driver......"

7. The Claims Tribunal analysed the evidence of the eye witness, the

averments made in the FIR, the Site Plan and found that the testimony

of the eye witness is fully corroborated from the Site Plan and thus, it

held that the accident was caused on account of rash and negligent

driving of the bus bearing registration no.DL-1PB-2137 by its driver.

8. It may be noted that in a Claim Petition under Section 166 of the

Motor Vehicles Act, 1988, the negligence is required to be proved

only on the touchstone of preponderance of probability and not

beyond the shadow of all reasonable doubt. In my view, the culpable

negligence was sufficiently established. I accordingly, affirm the

findings reached by the Claims Tribunal on the negligence.

QUANTUM OF COMPENSATION

9. It is well settled that all the allowances which enure for the benefit of

the family of the deceased are to be taken into consideration to

compute the loss of dependency. (See: National Insurance Co. Ltd. v.

Indira Srivastava & Ors., 2008 (2) SCC 763).

10. The Claims Tribunal therefore, rightly included all allowances except

the Performance Linked Allowance of `41,700/- per annum.

11. While dealing with the question of income of the deceased for the

purpose of computation of loss of dependency and future prospects, in

para 17 of the impugned judgment, the Claims Tribunal held as

under:-

"17. I have gone through the material on record. The salary certificate issued by Voltas Ltd. shows that deceased was getting salary of `32,295/- per month. The said certificate has not been challenged by respondents nor any suggestion is given to PW-2 about the said salary certificate. Besides abovesaid amount, an amount of ` 41,700/- per year is shown towards performance linked award. There is n document on record to suggest the basis of grant of performance linked award. Neither there is any salary slip of any month nor certificate of any previous year to show how much amount towards performance linked award, was granted to the deceased in previous years. In the absence of any reliable material on record with regard to performance linked award, the same cannot be considered as part of salary. It has come in the testimony of PW-2 that the deceased was to get 10% increase and was to also get the promotion. From

the testimony of PW-2, it is clear that deceased was a permanent employee therefore following the judgment "Smt. Sarla Verma & Ors. vs. DTC & Anr." passed by Hon'ble Supreme Court, 30% of salary amount is liable to be added towards future prospects."

12. Thus, the Claims Tribunal rightly added all allowances (which were

for the benefit of the deceased's family), in the deceased income and

added 30% towards future prospects as there was specific evidence

that the deceased was to get 10% rise in his salary on promotion.

13. The Claims Tribunal awarded a compensation of `10,000/- each

towards loss of love and affection, loss to estate and loss of

consortium and further granted a sum of `5,000/- towards funeral

expenses. In view of three Judge Bench decision of the Supreme

Court judgment in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9

SCC 54, the Claimants are entitled to a sum of ` 1,00,000/- each

towards loss of love and affection and loss of consortium, `25,000/-

towards funeral expenses and `10,000/- towards loss to estate.