Delhi High Court
The New India Assurance Co. Ltd. vs Kallu Bai & Ors on 24 August, 2012
Author: J.R. Midha
Bench: J.R. Midha
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP.No.46/2007 and CM No.954/2007
% Reserved on : 13th July, 2012
Date of decision : 24th August, 2012
THE NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through : Mr. Pankaj Seth, Adv.
versus
KALLU BAI & ORS. ..... Respondent
Through : Mr. Subhash Chechi, Adv.
for R-1 to 3.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
1. The appellant has challenged the award of the Claims Tribunal whereby compensation of `3,66,800/- has been awarded to claimant/respondent Nos.1 to 3.
2. The accident dated 27th December, 1998 resulted in the death of Raghubir. The deceased was going to his place of work on a bicycle driven by his friend Mani Ram when he was hit by a truck bearing No.HR-38C-5126 coming from the opposite direction near Ashoka Farm, Bandh Road. The deceased was survived by his widow and two children who filed the claim petition before the Claims Tribunal. The widow of the deceased appeared in the witness box and deposed that the accident occurred due to the rash and negligent driving of the offending vehicle driven by respondent No.5. The police MAC.APP.No.46/2007 Page 1 of 10 registered FIR No.902/98, P.S. Mehrauli, under Sections 279/337/304A IPC against respondent No.5. The widow of the deceased placed on record the copy of FIR No.902/98, site plan, seizure memo of the offending vehicle, post-mortem report, insurance policy/registration certificate of the offending vehicle and driving licence of respondent No.5. The widow of the deceased also placed on record the copy of the statement of the eye-witness, Mani Ram recorded by the police. Mani Ram stated before the police that he was accompanying the deceased on bicycle when truck bearing No.HR-38C-5126 driven rashly and negligently from the opposite side, hit the bicycle resulting in injuries to him and the death of Raghubir. He further stated that the accident occurred due to the rash and negligent driving of the offending truck.
3. The claimants could not produce the eye-witness to prove the rash and negligent driving of the offending vehicle and, therefore, the Claims Tribunal converted the claim petition from Section 166 of the Motor Vehicles Act to Section 163A of the Motor Vehicles Act.
4. The deceased was aged 28 years at the time of the accident and was working as mason. It was claimed that the deceased was earning `3,600/- per month at the rate of `180/- per day. However, the Claims Tribunal took the minimum MAC.APP.No.46/2007 Page 2 of 10 wages of `1,937 per month, added 50% towards the future prospects, deducted 1/3rd towards the personal expenses and applied the multiplier of 17 to compute the loss of dependency at `3,46,800/-. `5,000/- has been awarded towards funeral expenses and `15,000/- towards loss of love and affection. The total compensation awarded is `3,66,800/-.
5. The learned counsel for the appellant has urged at the time of hearing of this appeal that the Claims Tribunal erred in converting the claim petition under Section 166 of the Motor Vehicles Act into Section 163A of the Motor Vehicles Act in view of specific pleading that the accident occurred due to the rash and negligent driving of the offending vehicle by respondent No.5. It is further submitted that the Claims Tribunal erred in awarding future prospects to the claimants.
6. There is merit in the first contention of the appellant. In view of the specific pleading that the accident occurred due to the rash and negligent driving by respondent No.5 and all the relevant documents, namely, FIR, site plan, seizure memo and the statement of the eye-witness being on record, the Claims Tribunal ought to have conducted an inquiry under Sections 168 and 169 of the Motor Vehicles Act. It has been held by this Court in Mayur Arora v. Amit, 2011 (1) TAC 878 that the Claims Tribunal has to conduct an inquiry into the claim under MAC.APP.No.46/2007 Page 3 of 10 Sections 168 and 169 of the Motor Vehicles Act. Instead of converting the claim petition into Section 163 A of the Motor Vehicles Act, the Claims Tribunal ought to have examined the investigating officer and the eye-witness. Be that as it may, in view of the contention raised by the appellant, the claim petition is treated under Section 166 of the Motor Vehicles Act and on the basis of the documents placed on record by the claimants before the Claims Tribunal and applying the principle of res-ipsa loquitor, it is held that the accident occurred due to the rash and negligent driving of the offending vehicle by respondent No.5.
7. There is no merit in the second contention raised by learned counsel for the appellant with respect to the future prospects awarded by the Claims Tribunal. In Santosh Devi v. New India Assurance Company Limited, 2012 (4) SCALE 559, the Supreme Court held that judicial notice can be taken of the fact that the income of self-employed person as well as ordinary skilled and unskilled labour such as barber, blacksmith, cobbler, mason, etc., periodically increase due to inflation and, therefore, it would be reasonable to make addition to the income for computation of compensation. The Supreme Court held as under:-
"14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of MAC.APP.No.46/2007 Page 4 of 10 the judgment in Sarla Verma's case that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be naïve to say that the wages or total emoluments/income of a person who is self employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials MAC.APP.No.46/2007 Page 5 of 10 go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self- employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he / she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."
8. The learned counsel for claimant/respondent No.1 to 3 has urged that no compensation has been awarded for loss of estate. It is further submitted that the Claims Tribunal has awarded interest @6% per annum whereas the appropriate rate of interest is 9% per annum.
9. The learned counsel for the appellant submits that the claimants/respondents have not filed any cross-objections and, therefore, the enhancement of the award amount is not warranted. There is no merit in this contention. It is well settled that the Appellate Court can enhance the compensation even in the absence of cross-objections. Reference in this regard may be made to the recent judgment of this Court in National Insurance Company Limited v. Komal, MANU/DE/2870/2012.
MAC.APP.No.46/2007 Page 6 of 10
10. `10,000/- is awarded to claimants/respondents No.1 to 3 towards loss of estate. The rate of interest is enhanced from 6% per annum to 9% per annum in terms of the judgment of the Supreme Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, AIR 2012 SC
100.
11. For the reasons as aforesaid, the appeal is disposed of and the compensation awarded to claimants/respondents No.1 to 3 is enhanced from `3,66,800/- to `3,76,800/- along with interest @ 9% per annum from the date of filing of the claim petition till realization. The appellant has deposited 50% of the award amount with the Claims Tribunal which has been released to claimants/respondents No.1 to 3. The remaining award amount in terms of this judgment be deposited by the appellant with UCO Bank, Delhi High Court Branch by means of a cheque drawn in the name of UCO Bank A/c Kallu Bai. Upon the aforesaid deposit being made, the UCO Bank is directed to release 10% of the said amount to respondent No.1 by transferring the same to her Saving Bank Account. The remaining amount be kept in fixed deposit in the following manner:-
(i) Fixed deposit in respect of 10% of the amount in the name of respondent No.1 for a period of one year.MAC.APP.No.46/2007 Page 7 of 10
(ii) Fixed deposit in respect of 10% of the amount in the name of respondent No.1 for a period of two years.
(iii) Fixed deposit in respect of 10% of the amount in the name of respondent No.1 for a period of three years.
(iv) Fixed deposit in respect of 10% of the amount in the name of respondent No.2 for a period of four years.
(v) Fixed deposit in respect of 10% of the amount in the name of respondent No.2 for a period of five years.
(vi) Fixed deposit in respect of 10% of the amount in the name of respondent No.2 for a period of six years.
(vii) Fixed deposit in respect of 10% of the amount in the name of respondent No.3 for a period of seven years.
(viii) Fixed deposit in respect of 10% of the amount in the name of respondent No.3 for a period of eight years.
(ix) Fixed deposit in respect of 10% of the amount in the name of respondent No.3 for a period of nine years.
12. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Savings Account of respondent No.1.
MAC.APP.No.46/2007 Page 8 of 10
13. Withdrawal from the aforesaid account shall be permitted to the beneficiary after due verification and the Bank shall issue photo Identity Card to the beneficiary to facilitate identity.
14. No cheque book be issued to the beneficiary without the permission of this Court.
15. The original fixed deposit receipts shall be retained by the Bank in the safe custody. However, the original Pass Book shall be given to the beneficiaries along with the photocopy of the FDRs. Upon the expiry of the period of each FDR, the Bank shall automatically credit the maturity amount in the Savings Account of the beneficiaries.
16. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
17. Half yearly statement of account be filed by the Bank in this Court.
18. On the request of the beneficiaries, Bank shall transfer the Savings Account to any other branch according to their convenience.
19. The beneficiaries shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Mr. M.S. Rao, AGM, UCO Bank, Delhi High Court Branch, New Delhi (Mobile No. 09871129345). MAC.APP.No.46/2007 Page 9 of 10
20. The pending application stands disposed of.
21. Copy of this judgment be sent to Mr. M.S. Rao, AGM, UCO Bank, Delhi High Court Branch, New Delhi (Mobile No.09871129345).
J.R. MIDHA, J AUGUST 24, 2012 MAC.APP.No.46/2007 Page 10 of 10