Delhi High Court
Trilok Chand & Ors. vs Sajid Ali & Ors. on 27 May, 2016
$~R-115
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 27.05.2016
+ MAC.APP. 39/2008
TRILOK CHAND & ORS. ..... Appellants
Through : None.
Versus
SAJID ALI & ORS. ..... Respondents
Through: Mr. Pradeep Gaur & Mr. Amit Gaur,
Advs.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. On 10.11.2005, a motor vehicular accident occurred on account of
negligent driving of Van No. DL 5CC 3127 (offending vehicle), admittedly
insured against third party risk with National Insurance Company Ltd.
(insurer) for the period in question, it resulting in death of Dharmender, a
bachelor, aged 23 years. His parents (appellants) instituted accident claim
case (Petition No. 414/2006) on 20.03.2006 seeking compensation under
Sections 166 and 140 of Motor Vehicles Act, 1988 (MV Act). In the said
proceedings, besides the insurer Sajid Ali (first respondent) and Nooruddin
(second respondent) were also impleaded as parties on the averment that
they were driver and owner respectively of the offending vehicle. It was
alleged that accident was caused due to negligent driving of the same by the
first respondent. This plea was upheld by the tribunal, upon inquiry, by
judgment dated 13.09.2007. The tribunal granted compensation in the sum
of ` 4,09,253.60 with interest @ 7.5% per annum in favour of the claimants,
the said amount being inclusive of ` 20,000/- towards funeral expenses, `
60,000/- towards loss of love & affection and ` 3,29,253.60 towards
dependency loss.
2. The appeal at hand was filed submitting grievance that the
compensation awarded and the rate of interest (7.5% per annum) is
inadequate.
3. This appeal was admitted and directed to be shown in the list of
regulars. At the hearing, however, neither the claimants nor their counsel
would appear. There is no reason why the hearing on the appeal, which is
one of the oldest on board of this Court, should be deferred yet again.
4. Before the tribunal it had been claimed that the deceased was earning
his livelihood working for gain with M/s Jagdamba Automobiles and also to
help out his father (first appellant) in cultivation. The claimants pleaded that
the deceased was earning ` 5,000/- per month. The evidence adduced by the
claimants, however, was not accepted by the tribunal in absence of any
corroboration. The tribunal, instead opted to calculate the loss of
dependency on the basis of minimum wages (` 3165.90/-) of unskilled
worker.
5. During the pendency of this appeal, on their application, the claimants
were granted opportunity to lead further additional evidence under Order 41
Rule 27 of the Code of Civil Procedure, 1908 (CPC) availing which Trilok
Chand (A1W1) and Anand (A1W2) were examined. The sum and substance
of the evidence led before the tribunal, and the additional evidence brought
on record during the pendency of this appeal, is that the deceased was
working for gain with his brother Harkesh Kumar in running the business of
automobiles repairs in the name and style of Jagdamba Automobiles. It may
be mentioned here that Harkesh Kumar had died in the course of the same
accident and similar petition had been brought by his widow and other
dependent family members including the claimants in the present case. In
the case of claim arising out of death of Harkesh Kumar, which gave rise to
MAC Appeal No. 20/2008, which has been decided by a separate judgment
of this Court passed today, income tax returns (ITRs) submitted by Harkesh
Kumar were placed on record as evidence. The said ITRs were disbelieved
by the tribunal in the judgment rendered in that context in the other case
(Petition No. 415/2006). By the judgment passed by this Court on appeal
(MAC Appeal No. 20/2008), the said ITRs have been accepted as cogent
proof of the earnings of Harkesh Kumar. In the present case, however, such
evidence is not forthcoming. Mere production of some invoices, or stickers
or bill books concerning Jagdamba Automobiles cannot prove that the
deceased was earning ` 5,000/- per month as was claimed. Unlike the case
of Harkesh Kumar, no income-tax returns are shown to have been furnished
by Dharmender Kumar. In these circumstances, the view on income taken
by the tribunal cannot be faulted.
6. It is, however, noted that the non-pecuniary damages awarded and the
rate of interest levied are inadequate. In lieu of the non-pecuniary damages
awarded by the tribunal `1,00,000/- is awarded towards loss of love &
affection and ` 25,000/- each is added towards loss to estate and funeral
expenses. This would result in net increase in the award by ` 70,000/-.
7. Following the consistent view taken by this Court [see judgment dated
22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta
Devi & Ors.], the rate of interest is increased to 9% per annum from the date
of filing of the petition till realization.
8. The award is modified accordingly. Given the amount earlier
awarded by the tribunal, it is directed that the entire enhanced portion of the
award including on account of increase in the rate of interest shall be
payable to the second claimant (mother Omwati) only.
9. The insurer (third respondent) is directed to pay the enhanced
compensation including on account of increase in the rate of interest by
requisite deposit with the tribunal within 30 days whereupon the same shall
be released to the second appellant (Mother Omwati), it being put in fixed
deposit receipt in her name in a nationalized bank of her choice for a period
of five years, with right to draw monthly interest.
10. The appeal is disposed of in above terms.
(R.K. GAUBA)
JUDGE
MAY 27, 2016
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