Tata Aig General Insurance Co Ltd vs Kedarnath & Ors
2015 Latest Caselaw 2880 Del

$-13
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Decided on: 10th April, 2015
+       MAC.APP. 474/2011

TATA AIG GENERAL INSURANCE CO LTD                    ..... Appellant
                      Through:      Ms. Shanta Devi Raman, Advocate

                           versus

KEDARNATH & ORS                                      ..... Respondent

                      Through:      Mr. D.K. Sharma, Advocate for Respondent
                                    No. 1 and 2


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

                                 JUDGMENT

G. P. MITTAL, J. (ORAL)

1. This appeal is directed against the judgment dated 11.02.2011 passed

by Motor Accidents Claim Tribunal whereby compensation of Rs.

4,76,000/- was awarded for the death of Tej Prakash, who suffered

fatal injuries in a motor vehicular accident which occurred on

27.04.2006.

2. There is twin challenge to the impugned judgment. First, negligence

on the part of the driver of two wheeler bearing no.DL-4S-AD-7824

was not established and second, the compensation awarded is

excessive as in the absence of any evidence with regard to good future

prospects, addition of 50% was not permissible.

3. On the other hand, learned counsel for Respondents no.1 and 2 urges

that negligence of the driver was sufficiently established from the

testimony of PW2. It is urged by him that the compensation awarded

is too meagre and low and the same needs to be enhanced.

NEGLIGENCE

4. It is urged by the learned counsel for the Appellant that in respect of

the accident, FIR No. 370/2006 was registered at Police Station

Dwarka, Delhi. Statement of Abhay Kumar, driver of the two wheeler

was recorded and on the basis of that statement, the criminal case was

sent as untraced. It is urged that as per the statement made by the

earlier said Abhay Kumar, some unknown vehicle had dashed against

the two-wheeler from behind which was the cause of the accident.

Thus, learned counsel for the Appellant argues that the accident was

caused on account of negligence of an unknown vehicle and the

insurer of two wheeler bearing no.DL-4S-AD-7824 is not liable to pay

compensation for want of any negligence on the part of the driver of

the two-wheeler.

5. The Claims Tribunal dealt with the issue of negligence and discussed

in detail the statement of Vasudev (PW2) , an eye witness of the

accident.

6. Eye-witness to the incident namely Vasudev, PW-2 deposed that on

the date of the incident, he was present near the place of incident and

he saw the motorcycle in question being driven at a very fast speed by

Respondent no.1 Abhay Kumar, on which Tej Prakash was sitting on

the pillion seat. He further deposed that the said motorcycle was being

driven at a fast speed and its driver lost control over it. PW-2 deposed

that the said motorcycle struck against the footpath, as a result of

which Tej Prakash fell down and sustained injuries on his person. This

witness was not at all cross examined on behalf of Respondents no.1

and 2, who during the course of proceedings, failed to appear and were

proceeded ex-parte. In cross-examination on behalf of the Insurance

Company PW-2 stated that his statement was not recorded by the

police.

7. SI Rahul Kumar appeared in the witness box as PW-3 and proved

copy of FIR as Ex. PW3/B. This witness however, on being cross

examined stated that he was not the Investigating Officer of the

present case and did not have any personal knowledge.

8. Admittedly, the police on conclusion of investigation had prepared a

final report. However, Petitioners during the course of proceedings

had examined Sh. Vasudev, who categorically deposed that the

accident took place in his presence. If the Investigating Officer during

the course of investigation, for the reasons best known to him, failed

to examine this witness, then lapse on the part of the investigating

agency cannot stall the rights of the Petitioners to get compensation

from the tortfeasor. Respondents no.1 and 2 during the course of

proceedings had failed to appear and the Insurance Company had not

summoned the Investigating Officer of the present case.

9. Had the Investigating Officer appeared or been summoned by the

Insurance Company, he could have disclosed the reasons for not

recording statement of Vasudev during the course of investigation, but

that was not done.

10. Having regard to the facts and circumstances of the case and material

on record, I am of the considered opinion that there is no involvement

of any third vehicle in the present incident. More particularly, in view

of the deposition of the eye witness to the incident PW2 Vasudev, who

deposed that the motorcycle on which the deceased was travelling as

pillion rider was being driven by Respondent no.1. As per the material

on record, the said motorcycle struck against the footpath which

resulted in this unfortunate accident and sustaining of fatal injuries on

the person of deceased Tej Prakash, a bachelor son of the petitioners.

11. Having regard to these facts, I am of the considered opinion that

Respondent no.1 was driving the motorcycle at such a speed that he

lost control over the same, which in itself speaks about the negligent

manner in which he was driving the offender motorcycle.

12. I may mention that the statement made by Abhay Kumar to the police

under Section 161 Cr.P.C. can be used only for the purpose of

contradiction. Statement of Abhay Kumar under Section 161 Cr.P.C.

was rightly not given any value by the Claims Tribunal in view of the

statement of Vasudev (PW2). It is possible that Abhay Kumar wanted

to escape from the criminal liability and hence, the self serving

statement made by him will be of no consequence. PW2 categorically

deposed about the manner of the accident. He was categorical that the

two-wheeler driver was driving the motorcycle bearing no.DL-4S-AD-

7824 at a fast speed and that he had lost control. Although the veracity

of PW2 was sought to be discredited in cross examination, however,

nothing material could be extracted which would enable the court to

discard his testimony.

13. It is well established that in a Claim Petition under Section 161 of the

Act, negligence is required to be proved on touchstone of

preponderance of probability. In view of the above, negligence was

sufficiently established.

QUANTUM OF COMPENSATION

14. During inquiry before the Tribunal, it was claimed that deceased Tej

Prakash was employed with M/s Bar Tech Systems & Automations

Pvt. Ltd., address of which was also given in the claim petition. It was

further stated that he was earning a salary of Rs. 8000/- per month.

Although averment with regard to the same was made by PW-1

Kedarnath in his evidence by way of Affidavit (Ex. PW1/1); at the

same time no documentary evidence was produced with regard to the

deceased's income. However, it was established from the

unchallenged testimony of PW1 and also from host of the documents

placed on record that deceased Tej Prakash was a Graduate from

Rajasthan University with Economics as one of the subjects. He was

not only a Graduate but he had also obtained advanced diploma in

computers from the Department of Ministry of Commication &

Information Technology, Government of India. He had passed O

Level DOEACC Exams. He had also obtained certificate course from

UP Tech titled DTP (Desktop Publication). He further obtained

advance diploma in computer application from Computer Software

Ltd , Jaipur.

15. Appellant Insurance Company had not led any evidence on the basis

of its investigation that the deceased was not employed with M/s Bar

Tech Systems & Automations Pvt. Ltd., Mohan Garden, New Delhi.

Even if the Claim Tribunal disbelieves the claimant's version that the

deceased was earning Rs. 8000/- per month from the earlier said

employer, it ought to have made assessment of the deceased's income

on the basis of his qualifications and ought not to have given

compensation merely on the basis of him being a Graduate.

16. In view of this, I am inclined to believe that the income of deceased

was Rs.8000/- p.m. as claimed. At the same time, the Respondents

were not entitled to addition towards future prospects in the absence of

any evidence with regard to the same in view of the report of the

Supreme Court in Reshma Kumari and Ors. v. Madan Mohan and

Anr., (2013) 9 SCC 65 and a judgment of this Court in HDFC ERGO

General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors., MAC. APP.

189/2014 decided on 12.01.2015.

17. The mother of the deceased was aged 48 years at the time of the

accident. On applying a multiplier of 13 and 1/2 deduction towards

personal and living expenses, the loss of dependency will come to

Rs.6,24,000/- (8000 x 1/2 x 12 x 13).

18. In addition, in view of the three Judge Bench decision of the Supreme

Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54,

Respondents no.1 and 2 are further entitled to a sum of ` 1,00,000/-

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

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

19. The overall compensation thus comes to Rs.7,59,000/-.

20. The compensation is therefore enhanced by Rs.2,83,000/- which shall

carry interest @ 9% per annum from the date of filing of the claim

petition till its payment.

21. It is true that in the present case, no Cross-Appeal or Cross-Objections

have been filed by the Respondents. The question was examined by

me in Oriental Insurance Company Limited v. Mamta Rani & Ors.,

MAC APP.629/2010, decided on 06.09.2012 wherein this Court

noticed the Supreme Court judgments in Nagappa v. Gurudayal

Singh, (2003) 2 SCC 274; Ibrahim v. Raju, AIR 2012 SC 534; New

India Assurance Co. Ltd. v. Gopali & Ors., Civil Appeal No.5179 of

2012 decided on 05.07.2012 and a judgment of the learned Single

Judge of this Court in National Insurance Co. Ltd. v. Komal & Ors.,

MANU/DE/2870/2012, and held that the Court can increase the

compensation without filing any Cross Appeal or Cross Objections.

22. Thus, I do not find any impediment in increasing the compensation in

favour of the Respondents/Claimants.

23. 80% of the enhanced compensation shall be for the benefit of

Respondent no. 2, rest 20% shall be paid to Respondent no.1.

24. 50% of the enhanced compensation awarded to each of the

Respondents shall be kept in fixed deposit for one year and rest shall

be released on deposit.

25. The compensation deposited in pursuance of the order dated

25.05.2011 shall be released in terms of the order passed by the

Claims Tribunal.

26. Enhanced compensation of Rs.2,83,000/- along with interest as

indicated earlier shall be deposited by the Appellant Insurance

Company in UCO Bank, Delhi High Court Branch, New Delhi within

a period of 6 weeks from today, failing which Respondents no.1 and 2

shall be entitled to interest @ 12% per annum from the date of this

judgment.

27. The appeal is disposed of in above terms.

28. The pending applications, if any, also stand disposed of.

29. Statutory amount, if any, deposited shall be refunded to the Appellant

Insurance Company after the enhanced compensation is deposited and

certificate of compliance is filed by the Insurance Company.

(G.P. MITTAL) JUDGE APRIL 10, 2015 RS