Delhi High Court
Tata Aig General Insurance Co Ltd vs Sushila Devi & Ors on 8 February, 2016
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 8th February, 2016
+ MAC.APP.316/2011
TATA AIG GENERAL INSURANCE CO LTD ..... Appellant
Through Mr. Arbaaz Hussain, Adv. for
Ms. Shantha Devi Raman, Adv.
versus
SUSHILA DEVI & ORS ..... Respondent
Through Mr. S N Parashar, Adv. for R-1
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. On the claim petition under sections 140 and 166 of Motor
Vehicles Act, 1988 (MV Act) presented by first to fifth respondents
herein, registered as MACT claim case No.326/2008, the Motor
Accident Claims Tribunal (the Tribunal) awarded compensation in the
sum of ₹11,01,000/- with interest at 9% per annum from the date of
filing of the petition (03.06.08) till realisation on account of death of
Brahm Prakash in motor vehicular accident that occurred on 30.04.2008
at about 12.30 PM on national highway No.8 IMT, Manesar, Haryana,
involving collision between Maruti van bearing registration No.DL 3N
2811 (Maruti van) and truck bearing registration No.HR-55/E-8580 (the
offending vehicle), The Maruti van was concededly driven by Sandeep
@ Sonu son of deceased Brahm Prakash. In the said accident Sandeep
@ Sonu also died. In the claim petition, the driver and owner were
impleaded as first two respondents, they being sixth and seventh
respondents in this appeal. The appellant insurance company was
shown in the array as party respondent before the Tribunal. It has come
in appeal under Section 173 of MV Act questioning the computation of
the compensation as also raising the issue of no benefit having been
accorded on account of contributory negligence on the part of Sandeep
@ Sonu, the driver of the Maruti van.
2. The learned counsel for the appellant referred to paras 39 and 40
of the impugned judgment in the context of plea of contributory
negligence. The narration in the said paragraphs of the impugned
judgment run thus :
"39. Petitioners however, in addition to placing on record
the certified copies of criminal proceedings had examined
the eye witness Sh.Pradeep Kumar. This witness had
narrated the sequence of events as perceived by him at the
time of accident. He categorically deposed that on their
way to Delhi from Rajasthan, when their Maruti Van
reached at National Highway No.8, IMT Chowk, Manesar,
Gurgaon, the offending vehicle ie. Dumper was going
ahead of their vehicle being driven by its driver in a zig-zag
manner. He deposed that his brother namely Sandeep who
was driving the Maruti Van, intended to overtake the same
and gave the signal. He deposed that when his brother was
in the process of overtaking the offending vehicle, the
driver of the said vehicle suddenly took a right turn without
any signal and struck against their Maruti Van with great
force, which resulted in this accident.
40. On being cross examined, this witness maintained
the stand that the accident resulted due to negligence of
respondent no.l, who was driving his truck at a fast speed."
3. It is the contention of the insurance company that since the
evidence showed that the accident had occurred while the Maruti van
was in the process of overtaking, the finding should have been returned
to the effect that there was contributory negligence on the part of the
driver of the Maruti van.
4. Having heard the learned counsel and perused the record, it is
found that the contention is misplaced. Merely because the Maruti van
driver was in the process of overtaking, it does not mean negligence has
to be attributed to him as well. The evidence clearly showed that the
collision occurred because the truck driver had suddenly changed the
lane. The finding of negligence on his part, thus, has been correctly
recorded.
5. The insurance company submits that the Tribunal has wrongly
added the element of future prospects while calculating the loss of
dependency. It refers to Sarla Verma & Ors. vs. Delhi Transport
Corporation & Anr., (2009) 6 SCC 121 and Reshma Kumari & Ors. Vs.
Madan Mohan & Anr., (2013) 9 SCC 65.
6. In the present case, however, the evidence shows that the
deceased Brahm Prakash was neither a self-employed person nor
engaged in service at a fixed salary. His employer Deepak Behl (PW-4)
proved on the strength of his affidavit Ex.PW-4/1 and salary/wages
record [Ex.PW.4/A to EX.PW.4/C (Cl, C2 and C3)] that the deceased
was engaged as a security guard for the preceding 18 months, his last
salary being ₹3,633/-. Only because the said salary is equivalent to
minimum wages, it does not mean that his income has been assessed on
notional basis or that he is to be treated as a person engaged on fixed
salary. Thus, the addition of future prospects cannot be faulted.
7. The Tribunal, however, wrongly added ₹2,384/- in the loss of
dependency, the said amount representing the pension received by the
widow (first respondent herein) which she conceded was the family
pension, she was receiving after the death of Brahm Prakash, on account
of his past government service. No proof was adduced to show on
record as to what was the pension received by Brahm Prakash during his
lifetime. Be that as it may, the element of ₹2,384/- representing the
family pension which the widows continues to receive, there is no loss
to that effect.
8. Thus, the computation needs to be recalculated to the extent it
concerns loss of dependency. On the monthly loss of ₹5,550/-, the
multiplier of 13 was adopted since the age of deceased was 46 years. In
this view, the total loss of dependency comes to (5,550 x 12 x 13)
₹8,65,800/- rounded off to ₹8,66,000/-. Non-pecuniary damages in the
total sum of ₹1,55,000/- are added and, thus, the total compensation
payable in the case is computed at ₹10,20,800/-.
9. The award is accordingly modified. The compensation payable
on account of death of Brahm Prakash is reduced to ₹10,20,800/-. It
shall carry interest as levied by the Tribunal.
10. The Tribunal had apportioned the compensation amongst the
claimants by specifying the amounts. Since the compensation has been
reduced, the shares of the claimants shall stand reduced proportionately.
11. By order dated 06.05.2011, the insurance company had been
directed to deposit the entire award with up-to-date interest out of which
50% was allowed to be released. The Registrar General shall
recalculate the amount payable to the claimants in terms of the award
modified as above and release the balance, if any, to the claimants and if
claimants have received excess, they shall return the same to the
insurance company. If it be so required, the insurance company may
approach the tribunal for assistance in recovery in accordance with law.
The excess in deposit shall be refunded to the appellant.
12. The appeal is disposed of in above terms.
13. Statutory deposit, if made, shall be refunded.
R.K. GAUBA
(JUDGE)
FEBRUARY 08, 2016
VLD
