Delhi High Court
Reliance General Insurance ... vs Barkha Sharma & Ors. on 15 January, 2015
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 15th January, 2015
+ MAC.APP. 229/2013
RELIANCE GENERAL INSURANCE COMPANY LTD.
..... Appellant
Through: Mr. A.K. Soni, Adv.
versus
BARKHA SHARMA & ORS. ..... Respondents
Through: Ms. Deepa Rai, Adv. for R-1 to R-6.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
G. P. MITTAL, J. (ORAL)
1. The Appellant Reliance General Insurance Company Limited impugns
the judgment dated 11.12.2012 passed by the Motor Accident Claims
Tribunal (the Claims Tribunal) and seeks reduction of the
compensation of Rs.50,80,000/- which was awarded to Respondents
no.1 to 6 for the death of Gulshan Sharma, who succumbed to the fatal
injuries in a motor vehicular accident which occurred on 10.11.2010 at
about 10:50 p.m. at M.B. Road, Near K.S.S. Rang Road, New Delhi.
2. There is twin challenge to the impugned judgment. First, that the
negligence on the part of the driver of the offending vehicle was not
established and second, the compensation awarded is exorbitant and
excessive in as much as although the deceased Gulshan Sharma was
getting a salary of Rs.2,99,620/-, at the same time, a sum of Rs.2320/-
per month was being received by him towards transport allowance
which was incidental to his employment which was to be used to
commuting to and fro home to the place of the employment, yet the
Claims Tribunal included the same in his income while computing the
loss of dependency.
3. On the other hand, learned counsel for the Respondents supports the
judgment passed by the Claims Tribunal and urges that the
compensation awarded towards loss of love and affection and loss of
consortium was on the lower side.
NGELIGENCE
4. The Claims Tribunal appraised the testimony of PW-9 Ram Kumar, an
eye witness to the incident, registration of the criminal case and the
report under Section 173 Cr.P.C. and opined that the accident was
caused because of the rash and negligent driving of the truck bearing
registration no.DL-1GB-6524 by its driver. The relevant discussion
from para 6 of the impugned judgment is extracted hereunder:-
"6. Since the present petition is under Section 166 of
M.V.Act, it was the bounden duty of the petitioners to
prove that the respondent No.1 was rash and negligent in
driving the vehicle at the time of accident. To prove this
issue, the learned counsel for the petitioners has relied
upon the statement of PW-9, Shri Ram Kumar, who is an
eye witness to the accident and has deposed that on
10.11.2010, he was riding his motorcycle and when he
had reached in front of Tuglakabad Fort, one motorcycle
bearing registration no.DL-3S-AW-3307 was already
going ahead to his motorcycle and at about 10.50 p.m.
the offending vehicle i.e. Dumper Truck bearing
registration No.DL-1GB-6524 came from the side of
Badarpur and it was being driven at a very high speed
and in a rash and negligent manner and the said truck hit
the motorcycle bearing registration No.DL-3SAW-3307
resultantly the motorcyclist got crushed under the wheels
of the said vehicle. The said witness further averred that
he later on come to know the name of the deceased to be
Gulshan Sharma and that the police had also recorded
his statement. On being cross-examined by the counsel
for R-1 and R-2 on 13.09.2012, PW9, Sh. Ram Kumar
stated that on the date of accident he was coming from
Noida and was going to his residence at Ghitorni and the
deceased motorcyclist was going ahead of his
motorcycle. He has further stated that police officials
had met him at Trauma Center, AIIMS and they had also
taken him to the place of accident and recorded his
statement on the next day of accident. On being cross-
examined by the counsel for R-3/Insurance Company this
witness has stated that the motorcyclist was hit from
behind and the motorcycle of the deceased bearing
registration No.DL-3SBL-3307 was crushed under the
front wheel of the dumper. He further stated that the
deceased was not related to him. ASI Ashok Kumar has
also deposed that he had investigated the FIR No.283/10,
PS Pul Pehladpur and the Detailed Accident Report,
Ex.PW7/A had been filed by him. The IO has also stated
that Sh. Ram Kumar had witnessed the accident and his
statement had been recorded by him and site plan,
Ex.PW7/R-1 had been prepared at the instance of eye-
witness, Ram Kumar. The FIR No.283/10, Ex.PW4/A has
also been proved by Constable Pawan Kumar who had
produced the original FIR register No.6 for the year
2010. The respondent No.1, Sh. Dhruv Prakash Sharma
has got himself examined as R1W1 and has averred that
no accident had taken place due to his negligence.
However, R1W1, Sh. Dhruv Prakash has admitted during
his cross-examiantion on 30.11.2012 that he is facing
trial in respect of FIR No.283/10, PS Pul Pehladpur and
that he was arrested in the said FIR and was released on
bail by the police. R1W1 has further admitted that he
has not filed any complaint regarding his false
implication in this case. R1W1 in his entire deposition
has not explained about the manner in which the
accident had taken place and it is strange that although
he had been arrested in FIR No.283/10, PS Pul
Pehladpur but he does not chose to file any complaint
before any authority. Accordingly, I do not find the
testimony of the R1W1, Sh. Dhruv Prakash Sharma
worthy of any credence. On the other hand, the
statement of PW-9, Shri Ram Kumar stands corroborated
by the Detailed Accident Report as well as the Final
Report u/s. 173 Cr.P.C. filed by the police in respect of
this accident (FIR No.283/10, PS Pul Prahladpur)
against the respondent no.1/driver of the offending
vehicle for his trial for offences u/s. 279/304-A IPC. The
copies of FIR, Ex.PW4/A; site plan, Ex.PW-7/R-1;
seizure memo of the driving licence of R-1/driver; seizure
memo of the offending vehicle; arrest memo of the R-
1/driver and mechanical inspection report of the
offending vehicle have also been filed on record...."
5. From the discussion of the testimony of PW-9 and the driver R1W1, it
is evident that the accident was caused because of the rash and
negligent driving of the offending truck. It may also be noted that for
the purpose of claiming compensation under Section 166 of the Motor
Vehicles Act, 1988 (the M.V. Act) negligence has to be proved on the
touchstone of preponderance of probabilities only. In my view,
negligence was sufficiently proved. The finding on negligence,
therefore, cannot be faulted.
COMPENSATION
6. Deceased Gulshan Sharma was working as a Data Entry Operator in
National Crime Records Bureau and was getting a salary of
Rs.2,99,620/- per annum as per Form 16 duly proved on record as
Ex.PW-3/D. He was in settled government employment. The age of
the deceased was only 36 years. Hence, the Claims Tribunal rightly
granted future prospects of 50% and applied the multiplier of 15. At
the same time, sum of Rs.2320/- was being used by the deceased
Gulshan Sharma for commuting to and fro the place of his work. The
same ought to have been deducted from his income while computing
loss of dependency.
7. Form 16 further shows that income of Rs.33,420/- was exempted from
income tax. The tax was thus, liable to be paid only on income of
Rs.2,66,200/-.
8. The loss of dependency hence, comes to Rs.44,07,075/- (2,99,620/- -
27840/- (TA) - 10,620/- (income tax) + 50% x 3/4 x 15.
9. The Claims Tribunal awarded a sum of Rs.10,000/- each towards
funeral expenses, loss to estate and loss of consortium and Rs.25,000/-
towards loss of love and affection. The same needs to be enhanced to
Rs.25,000/-, Rs.10,000/-, Rs.1,00,000/- and Rs.1,00,000/- respectively
in view of the judgment in Rajesh & Ors. v. Rajbir Singh & Ors.,
(2013) 9 SCC 54.
10. The revised compensation is tabulated as under:-
Sl. Compensation under various Awarded by Awarded by
heads the Claims this Court
No. Tribunal
1. Loss of Dependency 50,25,000/- 44,07,075/-
2. Loss of Love and Affection 25,000/- 1,00,000/-
3. Loss of consortium 10,000/- 1,00,000/-
4. Funeral Expenses 10,000/- 25,000/-
5. Loss to estate 10,000/- 10,000/-
Total Rs.50,80,000/- Rs.46,42,075/-
11. The overall compensation thus, comes to Rs.46,42,075/-. The
compensation is reduced from Rs.50,80,000/- to Rs.46,42,075/-.
12. By an order dated 22.03.2013, the entire award amount was ordered to
be deposited. The compensation awarded as above, shall be
released/held in fixed deposit in favour of the Respondents/Claimants
in the proportion as directed by the Claims Tribunal.
13. The excess compensation of Rs.4,37,925/-along with proportionate
interest and interest earned during the pendency of the appeal shall be
refunded to the Appellant Insurance Company.
14. The statutory amount of `25,000/- shall also be refunded to the
Appellant Insurance Company.
15. The appeal is allowed in above terms.
16. Pending applications also stand disposed of.
(G.P. MITTAL)
JUDGE
JANUARY 15, 2015
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