Delhi High Court
New India Assurance Co. Ltd. vs Poonam & Ors. on 12 January, 2015
Author: G.P. Mittal
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 12th January, 2015
+ MAC. APP. No.680/2012
NEW INDIA ASSURANCE CO. LTD.
..... Appellant
Through: Mr. Manish Kaushik, Advocate for
Mr. K.L. Nandwani, Advocate
Versus
POONAM & ORS. .....Respondents
Through: Mr. S.N. Parashar, Advocate for
Respondents no.1 to 4.
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 25.02.2012 whereby compensation of Rs.17,16,496/- and counsel
fee for a sum of Rs.75,000/- was awarded in favour of Mr. Lokesh
Kumar, Advocate by the Motor Accident Claims Tribunal(the Claims
Tribunal).
2. The impugned judgment is challenged on the following grounds:-
(i) there was no negligence on the part of the insured vehicle; the
accident took place because of negligence of the car driver; and
(ii) award of Rs.75,000/- towards counsel's fee is unjustified,
illegal and not tenable.
3. The impugned judgment is supported by Mr. S.N. Parashar, the learned
counsel for Respondents no.1 to 4. It is urged that even if it is admitted
that a sum of Rs.75,000/- could not have been awarded towards counsel's
fee, the compensation towards loss of consortium i.e. Rs.10,000/- was on
the lower side. Relying on Rajesh & Ors. v. Rajbir Singh & Ors.,(2013)
9 SCC 54, the learned counsel contends that the Respondents(claimants)
ought to have been awarded a sum of Rs.1,00,000/- towards loss of
consortium.
NEGLIGENCE:
4. On the issue of negligence, the Claims Tribunal referred to the testimony
of PWs 4 and 5 and opined that the accident was caused on account of
negligence of the insured vehicle. I have perused the Affidavit of Balwan
Singh(PW4) and the testimony of Hosiar Singh(PW5). Both the
witnesses were categorical that the truck bearing no.UHQ -857 was going
ahead of the car bearing no.DL-2CZ-0074 and that the truck driver had
applied the breaks suddenly without giving any indication as a result of
which, the car collided in the rear portion of the truck. In cross-
examination, nothing substantial could be brought to rebut the testimonies
of PWs 4 and 5. It may be noted that in a claim petition under Section
166 of the Motor Vehicle Act, 1988, negligence has to be proved on the
touchstone of preponderance of probabilities. In view of the testimonies
of PWs 4 and 5, negligence is amply proved.
COUNSEL'S FEE:
5. It is stated by the learned counsel for the Appellant that the Claims
Tribunal was not justified in awarding a sum of Rs.75,000/- towards
counsel's fee. At the same time, on the basis of judgment in Rajbir
Singh(supra), Respondent no.1 was entitled to a sum of Rs.1,00,000/-
towards loss of consortium as against a sum of Rs.10,000/-. In view of
this, the sum of Rs.75,000/- awarded towards counsel's fee is set aside
and this sum is awarded towards loss of consortium making it Rs.85,000/-
.
6. The total compensation payable to Respondents/claimants thus, stands
enhanced by Rs.75,000/-.
7. The compensation awarded by the Claims Tribunal shall be disbursed in
terms of orders passed by the Claims Tribunal. The additional sum of
Rs.75,000/- towards loss of consortium along with interest @ 7.5% from
the date of filing of the petition shall be deposited by the Appellant within
four weeks.
8. 50% of the compensation on deposit shall be released to Respondent
no.1. Rest 50% shall be kept in Fixed Deposit for a period of two years.
9. The appeal is disposed of in above terms.
10. Pending applications, if any, also stand disposed of.
11. The statutory amount of Rs.25,000/- shall also be refunded to the
Appellant Insurance Company.
(G.P. MITTAL)
JUDGE
JANUARY 12, 2015
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