Delhi High Court
Ashok Kumar Rai vs Veerammal & Ors. on 10 April, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: April 10, 2018
+ MAC.APP. 820/2014
ASHOK KUMAR RAI ..... Appellant
Through: Mr. Pankaj K. Tripathi & Mr. K.K.
Tiwari, Advocate with appellant in person
Versus
VEERAMMAL & ORS. ..... Respondents
Through: Mr. Harbir Singh, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 11th march, 2014 grants compensation of
`3,74,025/- with interest @9% p.a. to respondents-claimants on account
of death of one Veera Swami, aged 56 years, in a vehicular accident on
20th April, 2010. The facts, as noted in the impugned Award by learned
Motor Accidents Claims Tribunal (hereinafter referred to as the
"Tribunal") are as under:-
"Brief facts of the case are that on 20.4.2010 at
around 11.15 am deceased Veera Swami going for his
duty, when reached at Gate no.1 I.P.Park, opposite Ring
Road, Sarai Kale Khan, New Delhi offending motorcycle
number DL-3S-AX-3220 driven by R1 in rash and
negligent manner hit the deceased, due to which he
received grievous injuries and thereafter removed to
AIIMS Trauma Centre by the police, however during
treatment he died due to the injuries at AIIMS Trauma
Centre on 24.04.2010."
2. On the strength of evidence of appellant and wife of deceased,
impugned Award has been rendered. The breakup of compensation
awarded by the Tribunal is as under:-
S.No. Description Amount
1. Loss of Dependency `1,39,725/-
2. Loss of Love & Affection `1,00,000/-
3. Funeral expenses `25,000/-
4. Loss of Consortium `1,00,000/-
5. Loss of Estate `10,000/-
Total `3,74,725/-
3. The Tribunal in the impugned Award has assessed the income of
deceased as `1,500/- p.m. and has deducted 1/4th towards personal
expenses of deceased and addition of 15% towards „future prospects‟ has
been made by the Tribunal and by applying multiplier of 09, loss of
dependency has been assessed at `1,39,725/-/.
4. Appellant is the owner and driver of offending vehicle i.e. the
motor cycle in question and since the motor cycle was not insured,
therefore, appellant has been saddled with the liability to pay the awarded
compensation. Learned counsel for appellant assails impugned Award on
the ground that appellant's motor cycle was not involved in the accident
in question and there was no eye witness of the accident in question. It is
submitted by appellant's counsel that appellant has been acquitted in the
criminal case and so, negligence cannot be attributed to appellant.
Attention of this Court is drawn to the site plan of the spot prepared in
criminal proceedings to show that the motor cycle had struck against the
pedestrian at Point-A, which is at a distance of 40 ft. from Point-B, where
the motor cycle was found lying. So, it is submitted that the manner of
taking place of this accident does not stand proved and infact,
unidentified vehicle had caused the accident in question and so, appellant
is not liable to pay the compensation awarded. It is also submitted by
appellant's counsel that the quantum of compensation awarded is
excessive in the facts of this case.
5. On the contrary, learned counsel for respondents-claimants
controverts appellant's case and maintains that appellant's involvement in
the accident in question is quite apparent from documents of the criminal
case which are on record and are not rebutted by appellant. So, it is
submitted that the impugned Award deserves to be maintained.
6. Upon hearing and on perusal of evidence on record and the
impugned Award, I find that as per FIR registered in respect of accident
in question, appellant's motor cycle was seized from the spot and since
appellant was injured in this accident, therefore, he was also removed
alongwith injured/deceased to hospital. The copy of Seizure Memo of
appellant's motor cycle, which was damaged in this accident, is also on
record. Mechanical Inspection Report of appellant's motor cycle, which
was damaged in this accident, clearly indicates involvement of
appellant's motor cycle in question. So, appellant is not justified in
asserting that his motor cycle was not involved in the accident in
question. Merely because there is no eye witness of the accident in
question, appellant cannot be absolved. Acquittal of appellant in the
criminal proceedings is because the complainant did not give evidence in
the criminal case.
7. A Coordinate Bench of this case in Gurpal Singh Vs. Meenu &
Ors. 2016 SCC OnLine Del 1088 has reiterated that the standard of proof
in the proceedings arising out of the liability in tort is to be decided on
touchstone of preponderance of probabilities rather than on proof of guilt
beyond all reasonable doubts. The result of criminal case is thus
inconsequential. It is settled legal position that de hors acquittal of a
driver in criminal case, the Tribunal is expected to make an independent
inquiry to reach a conclusion as to whether negligence on the part of
driver of the offending vehicle had been proved on the touchstone of
preponderance of probability or not.
8. In the considered opinion of this Court, the negligence of appellant
in causing the accident in question is probablised on the basis of the
material on record. Reference to site plan of the spot by appellant's
counsel is of no consequence because it is quite probable that after hitting
the pedestrian on one side of the road, the motor cycle loses its control
and is dragged or is found to be lying on other side of the road. So, on
this ground, it cannot be said that the accident in question did not take
place due to negligence of appellant.
9. So far as quantum of compensation granted is concerned, I find
that "loss of dependency" has been rightly assessed by the Tribunal.
However, the compensation granted under the non-pecuniary heads needs
to be brought in tune with decision of Constitution Bench of Supreme
Court in National Insurance Company Ltd. Vs. Pranay Sethi & ors. 2017
SCC OnLine SC 1270. In view of the dictum in Pranay Sethi (Supra), the
compensation granted by the Tribunal under the head of „loss of love &
affection‟ is disallowed and compensation granted under the head „loss of
consortium‟ is reduced from `1,00,000/- to `40,000/-. The „Funeral
Expenses‟ is accordingly reduced from `25,000/- to `15,000/- but
compensation granted under the head „loss of estate‟ is enhanced from
`10,000/- to `15,000/-.
10. In view of aforesaid, the compensation payable to respondents-
claimants is recalculated as under:-
S.No. Description Amount
1. Loss of Dependency `1,39,725/-
2. Loss of Consortium `40,000/-
3. Loss of Estate `15,000/-
4. Funeral expenses `15,000/-
Total `2,09,725/-
Consequentially, the compensation amount payable stands reduced
from `3,74,725/- to `2,09,725/-.
11. The re-assessed compensation shall carry interest @ 9% per annum
and it shall be disbursed in the manner as indicated in the Award. The
appellant shall deposit the compensation in terms of this judgment within
a period of six weeks with the Registry of this Court and thereafter, it be
disbursed to the claimants in terms of this judgment.
12. With aforesaid directions, this appeal is disposed of.
(SUNIL GAUR)
JUDGE
APRIL 10, 2018
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