Delhi High Court
Oriental Insurance Co. Ltd. vs Neelam Sharma & Ors. on 7 November, 2017
$~R-428 & 429
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 07th November, 2017
+ MAC APPEAL 1091/2011
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Saurabh Kumar Tuteja for
Mr. Tarkeshwar Nath,
Advocate
versus
NEELAM SHARMA & ORS. ..... Respondents
Through: Mr. Nitinjya Chaudhary and
Mr. Rajiv Trivedi, Advocate for
R-1 to 3
+ MAC APPEAL 470/2017
NEELAM SHARMA & ORS. ..... Appellants
Through: Mr. Nitinjya Chaudhary and
Mr. Rajiv Trivedi, Advocate
versus
ORIENTAL INSURANCE COMPANY
LIMITED & ORS. ..... Respondents
Through: Mr. Saurabh Kumar Tuteja for
Mr. Tarkeshwar Nath, Adv. for
R-1
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Rakesh Sharma, then aged 46 years, was crossing the road
known as Netaji Subhash Marg from one side to the other on
18.02.1999 at about 4.20 p.m. when he was hit by a bus bearing
registration no.DL-1P-0054 and died as a result of the injuries
suffered, he having been crushed under the wheels of the said vehicle.
His wife and two children, they being appellants in MACA 470/2017
(collectively, the claimants) instituted accident claim case (suit
no.59/2006) on 02.06.1999 impleading the driver, owner and insurer
of the said bus as party respondents, they being respondents in both
the appeals, the said insurer having also come up in appeal, it being
MACA 1091/2011.
2. On the basis of the evidence adduced, the tribunal held that the
accident had occurred due to the negligent driving of the bus. It,
however, also held that the deceased was guilty of contributory
negligence due to jay walking, assessing the said contributory
negligence to be to the extent of 20%. The tribunal computed the
compensation in the total sum of Rs.9,30,000/- but directed the
amount of Rs.7,50,000/- only to be paid on account of the contributory
negligence. The amount of compensation determined, includes
Rs.9,00,000/- towards loss of dependency, Rs.5,000/- towards funeral
expenses and Rs.25,000/- towards consortium and loss of love and
affection.
3. The insurer, by its appeal, submits that in the given facts and
circumstances brought out through the evidence, the contributory
negligence should have been to the extent of 50%. It also submits that
the calculation of the loss of dependency by the tribunal is incorrect as
the income of Rs.5,000/- was wrongly assessed. It is submitted that
given the ruling of the Constitution Bench of the Supreme Court
rendered on 31.10.2017 in SLP (C) 25590/2014, National Insurance
Company Ltd. Vs. Pranay Sethi and Ors., the element of future
prospects of increase in income in the present case cannot be more
than 25%. It also points out that the tribunal had wrongly applied the
multiplier of 15, the appropriate multiplier being 13, since the
deceased was 46 years old on the relevant date.
4. Per contra, the claimants argue that the conclusion about the
contributory negligence is erroneous as reckless driving of the bus by
its driver was the sole reason for the fatal accident. The claimants
further submit that the non-pecuniary damages be appropriately
increased in view of the ruling in Pranay Sethi (supra).
5. It is noted that the claimants had examined Rakesh Kumar (PW-
4) as the eye witness. The testimony of this witness has clearly
brought out that there was not much traffic on the road. Judicial
notice can be taken note of the fact that Netaji Subhash Marg is a busy
road passing through a densely populated locality. The place where
the accident occurred is particularly located in a busy market area
where pedestrians do cross over from one side to the other. It may be
that at the relevant point of time there was not much traffic moving on
the road. But then, that would not give a licence to the bus driver to
be reckless. The fact that the bus not only hit the deceased crossing
the road but also crushed and dragged him along shows the excessive
speed at which the bus was moving beyond the control of the driver.
In these circumstances, the accident undoubtedly occurred due to the
gross rash driving on the part of the bus driver. Without any material
in respect of the plea of contributory negligence being shown, it was
unfair to discount the compensation on such ground. Pertinent to note
here that there is nothing brought out in the testimony of the sole eye-
witness examined at the inquiry to indicate presence of any zebra
crossing in the vicinity. In these circumstances, the finding of the
tribunal on the issue of contributory negligence is set aside.
6. The plea of the insurance company about the income of the
deceased, however, is found to be correct. There was no basis to the
finding that the income of the deceased was Rs.5,000/- p.m. The
claimants had pleaded that he was running some business of operating
popcorn and juice vending machine at Vishal Cinema. But, no
documents worth the name were brought out.
7. In these circumstances, the minimum wages (Rs.2348 p.m.)
would have to be the benchmark for assessing the income. Following
the ruling in Pranay Sethi (supra), the factor of future prospects of
increase in income to the extent of 25% is added and the multiplier of
13 adopted. After making deduction of one-third towards personal
and living expenses, the loss of dependency is re-calculated as
[Rs.2,348/- x 125 / 100 x 2/3 x 12 x 13] Rs.3,05,240/-, rounded off to
Rs.3,06,000/- (Rupees Three Lakh and six thousand only).
8. Following the ruling in Pranay Sethi (supra), the non-pecuniary
damages in the sum of Rs.40,000/- towards loss of consortium and
Rs.15,000/- each on account of loss of estate and funeral expenses are
added. Thus, the total compensation to which the claimants are held
entitled is worked out as [Rs.3,06,000/- + Rs.40,000/- + Rs.15,000/- +
Rs.15,000/-] Rs.3,76,000/- (Rupees Three Lakh and seventy six
thousand only).
9. Following the consistent view taken by this Court, the rate of
interest is increased to 9% per annum (nine percent) from the date of
filing of the petition till realization. [see judgment dated 22.02.2016
in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi
& Ors.]
10. The insurance company had been directed by orders dated
05.12.2011 and 05.12.2016 in MACA 1091/2011 to deposit the
compensation awarded by the tribunal with UCO Bank, Delhi High
Court Branch. The Registry shall now take steps to ensure that the
amount of compensation payable to the claimants in terms of the
modification ordered above is released from out of such deposit, the
excess being refunded to the insurance company.
11. The statutory deposit made by the insurance company shall be
refunded.
12. Both appeals are disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 07, 2017
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