Delhi High Court
New India Assurance Co. Ltd. vs Shanti & Ors. on 8 January, 2015
Author: G.P. Mittal
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 08th January, 2015
+ MAC. APP. No.1021/2011
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. Manish Kaushik, Advocate for Mr.
K.L. Nandwani, Advocate
Versus
SHANTI & ORS.
.....Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant New India Assurance Co. Ltd. impugns the judgment
dated 17.08.2011 passed by the Motor Accident Claims Tribunal (the
Claims Tribunal) whereby compensation of Rs.2,85,955.75P was
awarded to Respondents no.1 and 2 for death of Shri Tilak Raj, who
suffered fatal injuries in a motor vehicular accident which occurred on
26.06.2006.
2. There is twin challenge to the impugned judgment. First, that there was
no negligence on the part of the tractor driver, i.e., driver of the vehicle
insured with the Appellant. Deceased Tilak Raj himself was to be
blamed for the unfortunate accident and thus the owner of the vehicle was
not liable to pay any compensation. Consequently there was no liability
of the Appellant to indemnify the insured. Second, that the Claims
Tribunal added 50% to the minimum wages taken by it as future
prospects for computing the loss of dependency. However, since decesed
Tilak Raj was not having a permanent job, the Claims Tribunal ought not
to have added anything towards future prospects.
NEGLIGENCE:
3. The manner of the accident has been described in para 1 of the impugned
judgment, which is extracted hereunder:
"The present claim petition was filed u/s 166 & 140 of the
Motor Vehicle Act, 1988 wherein the petitioner claimed a
compensation for Rs.10,00,000/- on account of death of Late Sh.
Tilak Raj in an accident which took place on 26.06.2006. On the
fateful day, Sh. Tilak Raj was going on his vehicle bearing No.DL-
3SAW-4127 alongwith his cousin towards Mehrauli from
Chattarpur and when he reached near Jain Dada Badi Mandir
Road, Mehrauli, in the meantime one tractor bearing no.UP-
14AD8471 which was going ahead of motorcycle took a sudden
turn towards right side and due to this motorcycle of victim
collided with tractor. Due to the forceful impact, the victim
sustained grievous injuries and thereafter he was removed to the
AIIMS Hospital for treatment where doctor declared him brought
dead. An FIR bearing No.429/2006 PS Mehrauli was registered."
4. The criminal case being FIR No.429/2006 P.S. Mehrauli was registered
against the tractor driver. Certified copy of the challan under Section 173
of the Code of Criminal Procedure, 1973 (Cr.P.C.) was placed on record
by the claimants. Attested copy of the site plan is also placed on record.
The copy of the site plan clearly corroborates the manner of accident as
described by the Claims Tribunal. The learned counsel for the Appellant
urges that when a motor cyclist follows a heavy vehicle like a truck or a
tractor, he ought to be more vigilant. The learned counsel for the
Appellant refers to the judgment of Arun Kumar v. Food Corporation of
India and Ors., 2 (1993) ACC 283 and particularly refers to paras 24 and
26 of the Report, which are extracted hereunder:
"24. Though it is the duty of the persons following in by-cycle
or motor-cycle a heavy vehicle like truck to remain vigilant
about the other motor-vehicle coming from behind or from
opposite direction and further about the passing of the motor
vehicle by the side of such heavy vehicle. It appears that the
motor-driver was not watchful about the persons and the
cyclists following the motor-truck and similarly the persons
following the motor-truck like the Claimant were also not
vigilant about other vehicle coming and passing by the side of
the truck.
......
.......
26. Thus, in the opinion of this Court the driver was
negligent by not keeping proper watch over the road and the
traffic including pedestrian and cyclists and the present
Claimant was also responsible for coming in front of the motor-
truck suddenly. Hence both-motor driver and the cyclist
(Claimant) were equally responsible for the accident and
therefore, it will be deemed that Claimant contributed to the
accident to the extent of 50% and 50% responsibility of the
accident was that of the driver NAW-2 K.R. Nair."
5. In Arun Kumar(supra), it was observed that the driver of the offending
vehicle was himself not watchful about the cyclist following the truck. It
was further observed that the cyclist was also responsible for coming in
front of the motor truck suddenly and thus, it was held that the cyclist
himself contributed to the accident. The facts of the instant case are
completely different. Here, the tractor driver had suddenly taken a right
turn towards Jain Dada Badi Mandir Road, Mehrauli and the motor
cyclist i.e. the deceased was caught unaware. The driver of the tractor
has not come forward to rebut the filing of the criminal case and the
manner of accident which is demonstrated by the site plan. In view of
this, negligence for the purpose of a claim petition under Section 166 of
the Motor Vehicles Accident, 1988 is sufficiently established.
LOSS OF DEPENDENCY:
6. The claimants claim that deceased Tilak Raj was employed as a barber
and was earning Rs.7,000/- per month. Shanti Devi, PW1 (mother of the
deceased Tilak Raj) filed an Affidavit dated 20.07.2009 and deposed that
her son was working as a barber and used to earn Rs.3300/- per month.
7. Overall compensation of Rs.2,85,955.75P was awarded by the Claims
Tribunal. It may be noted that even in case of a minor child,
compensation of Rs.3,75,000/- has been granted by this Court. (Oriental
Insurance Company Ltd. v. Altaf Hussain & Ors., MAC. APP. 506/2012
decided on 14.09.2012 and Jai Singh & Anr v.Mahipal & Ors., MAC
APP. 440/2010, decided on March 22, 2012).
8. In view of this, the Appellant Insurance Company ought not to have
approached the Court for reduction of compensation.
9. In any case, even if future prospects are not added in the income of the
deceased, i.e. Rs.3300/- per month, the loss of dependency calculated on
the age of the mother (48 years) will come to Rs.2,57,400/- (3300 x 12 x
x 13 - ½ ).
10. In addition, the Claimants would be entitled to a sum of Rs.1,00,000/-
towards loss of love and affection and Rs.25,000/- towards funeral
expenses as against the amount of Rs.20,000/- and Rs.10,000/- awarded
by the Claims Tribunal. The compensation thus, is tabulated as under:-
Sl. Compensation under various Awarded by Awarded by
heads the Claims this Court
No. Tribunal
1. Loss of Dependency 2,55,955.75P/- 2,57,400/-
2. Loss of Love and Affection 20,000/- 1,00,000/-
3. Funeral Expenses 10,000/- 25,000/-
4. Loss to Estate 10,000/-
Total 2,85,955.75/- Rs.3,92,400/-
11. Hence, the total amount of compensation is enhanced to Rs.3,92,400/-.
The enhanced compensation of ` 1,06,445/- shall carry interest @ 7.5%
per annum as awarded by the Claims Tribunal from the date of filing of
the petition till the payment of the amount.
12. The enhanced compensation shall go to Respondent no.1, who is mother
of the deceased. Since the enhanced compensation is very small, it shall
be released to Respondent No.1 on deposit.
13. Insurance Company is directed to deposit the enhanced compensation
along with proportionate interest within four weeks.
14. Statutory amount of Rs.25,000/- shall be refunded to the Appellant
Insurance Company on deposit of the enhanced compensation.
15. Pending applications, if any, also stand disposed of.
(G.P. MITTAL)
JUDGE
JANUARY 08, 2015
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