Delhi High Court
The New India Assurance Co. Ltd. vs Dr. Saurabh Kumar Gupta @ Saurabh ... on 30 January, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: January 30, 2017
(i) + MAC.APP. 573/2008
DR.SAURABH KUMAR GUPTA @ SAURABH GUPTA
..... Appellant
Through: Mr. S.P. Singh Chaudhary &
Mr. Y.R. Sharma, Advocates
Versus
NEW INDIA ASSURANCE CO. LTD. & ORS. .....Respondents
Through: Mr. Pankaj Seth, Advocate for
respondent No.1
Mr. Akhilesh Kr. Sharma,
Advocate for respondent No.3
(ii) + MAC.APP. 600/2008
(iii) + MAC.APP. 602/2008 & C.M.5157/2009
THE NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
DR. SAURABH KUMAR GUPTA @
SAURABH GUPTA AND ORS. .....Respondents
Through: Mr. S.P. Singh Chaudhary &
Mr. Y.R. Sharma, Advocates
for respondent No.1
Mr. Akhilesh Kr. Sharma,
Advocate for respondent No.3
MAC.APP.573, 600 & 602 of 2008 Page 1 of 7
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% ORAL
1. The above captioned three appeals are directed against common
impugned Award of 2nd August, 2008 vide which compensation of
`15,90,000/- and `2,75,000/- with interest has been granted to Claimant-
Dr. Saurabh Kumar Gupta on account of death of his wife, aged about 29
years and death of his minor daughter, aged about 2½ years, in a road
accident on 24th May, 2005. The above captioned first appeal is by
Claimant, who seeks enhancement of compensation, whereas above
captioned second and third appeals are by the Insurer, who seeks to
absolve itself from the liability to pay compensation by asserting that
negligence was of the tractor-trolley driver and not of car driver and in
the alternative, plea of contributory negligence has been put forth by the
Insurer.
2. As per order of 26th February, 2009, in the above captioned first
appeal and as per order of 29th May, 2012 in the above captioned second
and third appeal, service is complete. Since these appeals arise out of
common impugned Award of 2nd August, 2008, therefore, with the
consent of learned counsel for the parties, these appeals have been heard
together and are being disposed of by this common judgment.
3. The factual background of this case stands already noted in the
impugned Award and so, needs no reproduction. Suffice to note that on
24th May, 2005 wife and daughter of Claimant along with his mother and
mother-in-law, were travelling in Maruti Zen Car No.UP 75 B 7949,
which was driven by Kuldeep and on that day, at about 11:45 a.m., it
collided with a tractor-trolley at the crossing near Chatta, Mathura. In this
accident, driver of car in question and wife and daughter of Claimant had
died. It is a matter of record that in respect of this accident, FIR was got
registered against driver of tractor-trolley in question. Pertinently, the
registered owner of car in question was ex parte before the learned Motor
Accident Claims Tribunal and here also, he is ex parte. However, he has
deposed before the learned Tribunal. Apart from his evidence, there is
evidence of eye witness- Dr. Vijay Gupta and surveyor of the Insurer. On
the basis of evidence on record, the impugned Award has been rendered.
The breakup of compensation awarded by learned Tribunal is as under:-
Loss of income `15,20,000/-
Loss of love and `50,000/-
affection and consortium
Funeral charges `10,000/-
Total compensation `15,80,000/-*
(*Inadvertently shown as `15,90,000/-)
4. Mr. S.P. Singh Chaudhary, Advocate for Claimant- Dr. Saurabh
Kumar Gupta, submits that income tax return of the year 2005-06 has not
been considered while assessing the income of the deceased and income
tax return of the earlier year i.e. 2004-05 has been considered and infact,
the subsequent income tax return ought to have been considered and so,
the compensation awarded needs to be suitably enhanced. It is submitted
that interest of 7.5% p.a. granted is on lower side and the reasonable rate
of interest which ought to have been granted is 9% p.a. It is submitted
that the compensation granted under the non-pecuniary heads is on the
lower side and it needs to be suitably enhanced.
5. Mr. Akhilesh Kr. Sharma, Advocate for driver of the tractor-trolley
supports the impugned Award and submits that as per evidence of eye-
witness, the negligence was of the car driver and so, the liability to pay
the compensation cannot be shifted upon the owner of tractor-trolley in
question. Attention of this Court is drawn to certified copy of site plan of
the spot prepared in the criminal proceedings to submit that mere
registration of FIR against the driver of tractor-trolley in question is of no
consequence for the reason that Ved Prakash, author of this FIR, has not
been got examined. It is submitted that version put forth by aforesaid Ved
Prakash stands contradicted from site plan of the spot and so, impugned
Award need not be interfered with. It is further submitted that evidence of
surveyor (R1W1) of insurer cannot be relied upon to shift the negligence
upon tractor-trolley's driver because the said witness had not prepared site
plan of the spot and had prepared the report at the instance of one Ashok
Kumar, who has not come forward to depose and so, evidence of
surveyor (R1W1) is of secondary nature and it deserves to be ignored. It
is pointed out that the negligence aspect becomes abundantly clear from
the fact that front portion of the car in question was extensively damaged
and had tractor-trolley hit the said car, then there would have been
damage on side of the car.
6. Mr. Pankaj Seth, Advocate, for Insurer draws the attention of this
Court to deposition of eye witness- Dr. Vijay Gupta (PW-1) to point out
that she in her cross-examination has stated that she had seen tractor in
question 5-10 minutes prior to the accident in question and that she is an
interested witness, as she is mother of Claimant and wife of owner of car
in question. It is pointed out that owner of the car in question- Dr. S.C.
Gupta (R3W3) in his evidence nowhere stated that driver of the car in
question was negligent and so, negligence cannot be attributed to driver
of the car in question. He submits that negligence was of tractor-trolley
driver and therefore, FIR has been registered against him. In the
alternative, it is submitted that the instant case clearly depicts that it is a
case of 50:50 contributory negligence. So, it is submitted by learned
counsel for Insurer that infact Insurer needs to be absolved from the
liability to pay the compensation, as the liability to pay the compensation
is of owner of tractor-trolley in question.
7. On the aspect of quantum of compensation awarded, learned
counsel for Insurer submits that there is no loss of dependency, as
husband of the deceased/ Claimant is himself a doctor and by now, he
would have remarried and `15,20,000/-under the head loss of income has
been already granted and so, no case for enhancement of compensation is
made out and rate of interest granted need not be enhanced, as it is just
and proper. Nothing else is urged by either side.
8. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that Insurer's application under Section 170 of The
Motor Vehicles Act, 1988 has been already allowed by Motor Accident
Claims Tribunal and so, Insurer is permitted to challenge the impugned
Award on the negligence aspect as well. I find that evidence of eye
witness- Dr. Vijay Gupta cannot be diluted merely because she happens
to be mother of Claimant and wife of owner of the car in question, as the
version put forth by her regarding the manner of accident finds supports
from the site plan of the spot. While relying upon evidence of eye
witness- Dr. Vijay Gupta (PW-1), which is supported from the site plan of
the spot, I find that negligence was of the car driver and not of tractor-
trolley's driver and so, finding returned by learned Tribunal on the
negligence aspect need not be interfered with.
9. So far as enhancement of compensation is concerned, I find that
learned Tribunal has rightly relied upon income tax return of the year
2004-05, as income tax return for the subsequent year i.e. post accident
need not be taken into consideration and so, loss of dependency assessed
appears to be just and fair. However, I find that under the non-pecuniary
heads, compensation granted for loss of consortium is on the lower side,
as Supreme Court in Rajesh and Others v. Rajbir Singh and Others,
(2013) 9 SCC 54 has granted compensation of `1,00,000/- under the head
"loss of consortium" and `25,000/- has been awarded under the head
"funeral expenses".
10. Accordingly, the compensation awarded under the head "loss of
consortium" is enhanced from `50,000/- to `1,00,000/- and under the
head "funeral expenses" is enhanced from `10,000/- to `25,000/-.
11. Thus the enhanced compensation awarded to Claimant is as under:-
Loss of income `15,20,000/-
Loss of love and `1,00,000/-
affection and consortium
Funeral charges `25,000/-
Total compensation `16,45,000/-
12. In view of the aforesaid, the compensation awarded is enhanced
from `15,80,000/- to `16,45,000/- only. The interest @7.5% p.a. granted
by the learned Tribunal is in consonance with the rate of interest granted
by the Supreme Court in Rajesh (supra) and so, rate of interest granted
need not be enhanced. It is not disputed that 50% of the awarded amount
has been already released to Claimant. Four weeks' time is granted to
respondent-insurer to deposit the enhanced compensation with interest
@7.5% p.a.
13. The statutory deposit, if any, be refunded to the appellant-insurer
after enhanced amount is deposited.
14. With aforesaid modification, these appeals are disposed of.
(SUNIL GAUR)
JUDGE
JANUARY 30, 2017
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