Delhi High Court
New India Assurance Co Ltd vs Nirmala Devi & Ors on 26 May, 2015
Author: Jayant Nath
$~A-17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on : 26.05.2015
+ MAC.APP. 309/2011 & CM No.6975/20111
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through Mr.Pankaj Seth, Advocate
versus
NIRMALA DEVI & ORS ..... Respondent
Through Mr.Rajnish K.Jha, Advocate for R-
1 to R-5
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.
1. The present appeal is filed by the appellant insurance company
seeking to impugn the Award dated 10.2.2011. The brief facts are that on
1.9.2010 the deceased Shalik Ram was crossing the road in front of
Chowk Nangloi Depot, Rohtak Road, Delhi and was hit by a car driven
by respondent No.6 in a rash and negligent manner.
2. Based on the evidence on record the Tribunal held that the accident
took place due to the rash and negligent driving of respondent No.6.
3. On compensation the Tribunal noted that the deceased was 46
years of age on the date of the accident. The Tribunal relied upon the
minimum wages of a skilled worker which was Rs.6,448/- per month in
the said year. The same was enhanced by 50% for future prospects. 1/4 th
was deducted towards personal expenses and adopting a multiplier of 13
loss of dependency of Rs.11,31,624/- was awarded. Rs.25,000/- was
awarded towards funeral charges. Rs.1,00,000/- towards love and
affection, Rs.10,000/- for loss of consortium and Rs.5,000/- towards loss
of estate. A total sum of Rs.12,71,624/- was awarded.
4. Learned counsel appearing for the appellant has impugned the
Award on three grounds. He firstly submits that the Tribunal has wrongly
concluded that the accident took place due to the negligene of respondent
No.6. He submits that there is no proof of any negligence on record and
the onus was on the claimants to have proved the negligence. The
findings of negligence are hence erroneous. It is secondly submitted that
the Tribunal has wrongly taken the deceased to be a driver and awarded
compensation of a skilled worker. Thirdly, it is submitted that the Award
of future prospects of 50% is improper. Even relying upon the judgment
of the Supreme Court in Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9
SCC54 keeping in view that the age of the deceased was 46 years old the
enhancement should be 30% on account of future prospects.
5. As far as the negligence part is concerned it is noteworthy that the
respondents have not led any evidence. Even respondent No.6 the driver
of the offending vehicle has not entered appearance to lead evidence.
This Court has in Cholamandalam vs. Kamlesh 2009 (3) AD (Delhi) 310
held that where the driver of the offending vehicle does not enter the
witness box an adverse inference can be drawn against the offeding
vehicle. In the present case respondent No.6 did not enter appearance or
enter the witnessbox.
6. A perusal of the Award shows that the Tribunal has noted the
Detailed Accident Report filed by the police, FIR filed under section
279/337/304 of IPC and the Tribunal has relied upon the judgment of
this Court in the case of National Insurance Company vs. Pushpa Rana,
2009 ACJ 287 to hold that there is sufficient proof to reach at the
conclusion that the driver was negligent.
7. Similar to the above noted judgment of National Insurance
Company vs. Pushpa Rana (supra) is the judgment of the Divison Bench
of Madhya Pradesh High Court in Basant Kaur & Ors. vs. Chatarpal
Singh & Ors. 2003 ACJ 369 MP (DB).
8. I may also add that the police has also filed the chargesheet. In the
chargesheet police has relied upon the statement of Mr.Malik Ram who
has said that the deceased was crossing the road when the light was red
and defendant No.1 had jumped the red light and hit the deceased. I may
also note that the trial court record shows that one Shri Vijay Kumar Patel
has tendered his evidence by way of affidavit as PW-2. The affidavit has
been marked as Ex.PW2/A on 19.11.2010. But in the ordersheet of
19.11.2010 there is no reference to this evidence by way of affidavit. The
record also shows that PW-2 was never cross-examined. The reasons for
not cross-examining PW-2 cannot be made out from the trial court record.
The said PW-2 has also made the same statement in his affidavit that
respondent No.6 had jumped the red light and hit the deceased who was
at that time crossing the road.
9. In the light of the evidence on record I see no reason to differ with
the view taken by the Tribunal that the accident took place due to the
negligence of respondent No.6.
10. As far as the assessment of income of the deceased is concerned, I
am of the view that no reasons have been explained as to why the
assessment of income based on minimum wages of a skilled worker were
incorrect.
11. Coming to the third contention, there is merit in the contention of
the appellant that the future prospects had to be given @30% as per
judgment of the Supreme Court in Rajesh & Ors. vs. Rajbir Singh &
Ors.(supra) As the deceased was 46 years old the loss of dependency
would hence have to be worked out taking into account that the claimants
are entitled to enhancement of assessment of income of the deceased by
30% only and not 50% Loss of dependency would now be Rs.9,80,772/-
[{(6,448 + 30%) - ¼} x 12 x 13].
12. Total compensation would now work out to be as follows:-
Loss of dependency Rs.9,80,772/-
Loss of love & affection Rs.1,00,000/-
Loss of consortium Rs.10,000/-
Funeral charges Rs.10,000/-
Loss of estate Rs.5,000/-
Total Rs.11,05,772/-
13. As per orders of this Court dated 5.4.2011 the entire award amount
was directed to be deposited and 75% was directed to be released. The
Registrar General may release the balance amount as per this order with
proportionate accumulated interest to the claimants in the same manner as
directed by the Tribunal. The balance amount shall be refunded to the
appellant with proportionate interest. Appeal stands disposed of.
(JAYANT NATH)
JUDGE
MAY 26, 2015/n
