* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 19th October, 2012 + MAC.APP. 410/2012 NEW INDIA ASSURANCE COMPANY LTD. Appellant Through Mr. [ENTITY], Adv. Mr. [ENTITY], Adv. versus RAJESH KUMAR & ORS. Respondents Through Mr. [ENTITY], Adv. CORAM: HON'BLE MR. JUSTICE G.P.MITTAL JUDGMENT
[ENTITY], J. (ORAL)
1. The Appellant [ENTITY] impugns a judgment dated 04.02.2012 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) in [CASE NUMBER] whereby a compensation of `7,09,568/- was awarded in favour of the legal representatives of [ENTITY], who died in a motor vehicle accident which occurred in the early hours of 06.11.2009.
2. On the night intervening 05.11.2009 and 06.11.2009 at about 3:30 A.M. the deceased [ENTITY] along with his father [ENTITY] and one [ENTITY] was returning from DDU hospital on a two wheeler No.DL-4S-BM-4070. The two wheeler was being driven by [ENTITY]. When they reached the traffic signal at Pankha road and were negotiating a right turn, a truck No.RJ-31G-4278, which was driven by [ENTITY] (Respondent No.3 herein) in a rash and negligent manner travelled to the side of the two wheeler and rammed into it. On account of the forceful impact, all the three persons fell down. Respondent No.1 [ENTITY] survived with grievous injuries, while the injuries in the case of [ENTITY] proved fatal.
3. On appreciation of evidence, the Claims Tribunal found that the accident was caused on account of rash and negligent driving of the offending vehicle by Respondent [ENTITY].
4. Deceased [ENTITY] was a bachelor and was a Matriculate. It was claimed that he was earning `6,000/- per month. In the absence of any evidence with regard to his income, the Claims Tribunal took the minimum wages of a Matriculate; added 50% towards inflation; deducted one-half towards personal and living expenses and applied the multiplier of 14 to compute the loss of dependency. The compensation awarded is tabulated hereunder:-
Sl. Compensation under various heads Awarded by the Claims Tribunal No.
1. Loss of Dependency `5,54,568/-
2. Funeral Expenses ` 50,000/-
3. Loss to Estate ` 5,000/-
4. Loss of Love and Affection ` 1,00,000/-
Total ` 7,09,568/-
5. The following contentions are raised on behalf of the Appellant Insurance Company:-
(i) Since three persons were travelling on a two wheeler in violation of the provision of the [ACT] (the Act), there was contributory negligence on the part of the deceased. The compensation is, therefore, liable to be deducted towards contributory negligence.
(ii) An addition of 50% towards inflation was not justified. At the most, there could be addition of 30%.
(iii) The compensation of `50,000/- awarded towards funeral expenses and `1,00,000/- towards loss of love and affection is excessive and exorbitant.
NEGLIGENCE
6. Respondent No.1 [ENTITY] who survived the injuries in the accident filed his Affidavit Ex.PW-1/A by evidence testifying about the manner of the accident. He deposed that he along with his son [ENTITY] (the deceased) and one [ENTITY] was returning from DDU hospital on a two wheeler No.DL-4S-BM-4070. The two wheeler was being driven by [ENTITY]. When they reached the traffic point at Pankha road and the two wheeler driver was taking a right turn after giving proper indication, a truck No.RJ-31G-4278, which was being driven by Respondent [ENTITY] in a rash and negligent manner came from Uttam Nagar side. The truck driver took his truck towards the side of the two wheeler and hit it with great force. On account of the forceful impact, they fell down and were dragged upto a considerable distance. In cross-examination on behalf of the owner and driver of the truck it was suggested to PW-1 that the accident was caused as the two wheeler driver became nervous. It was, however, not disputed that the truck had not travelled to the side of the two wheeler and rammed into it.
7. [ENTITY], driver of the truck also filed his own Affidavit Ex.R1W1/A and stated that the accident was caused on account of the sole negligence on the part of the two wheeler driver. The main thrust of Respondent [ENTITY] was on the fact that there were three persons riding on the two wheeler in violation of the provisions of the [ACT]. The exact manner of the accident was not disputed.
8. There is no presumption that there would be negligence on the part of two wheeler driver, if three persons are riding on a two wheeler. The negligence has to be established as a fact.
9. In the instant case, as stated earlier, the manner of the accident as deposed by PW-1 [ENTITY] was not seriously challenged. Thus, from PW-1's testimony coupled with the registration of a criminal case against the truck driver under Section [SECTION] [ACT], an inference of culpable negligence can be drawn against Respondent [ENTITY].
10. Thus, the finding of negligence, reached by the Claims Tribunal cannot be faulted.
QUANTUM
11. During inquiry before the Claims Tribunal it was claimed that the deceased [ENTITY] was earning `6,000/- per month by assisting his father. No reliable evidence was produced with regard to his income. The Claims Tribunal took the minimum wages of a Matriculate to compute the loss of dependency; added 50% in the assumed income on account of inflation.
12. As per [PRECEDENT]; in the absence of any evidence with regard to future prospects, there could be an addition of only 30% towards inflation in case the victim was a self-employed person. Thus, the loss of dependency comes to `4,80,589/- (4401/- + 30% x 1/2 x 12 x 14).
13. The Claims Tribunal awarded a sum of `50,000/- towards funeral expense. In [PRECEDENT] it was laid down that actual expenditure on funeral expenses should be awarded in fatal accident cases. No evidence was led with regard to expenditure on last rites. In the circumstances, it would be appropriate to award only a sum of `10,000/- under this head.
14. The Claims Tribunal awarded a sum of `1,00,000/- towards loss of love and affection. Loss of love and affection can never be measured in terms of money. Thus, uniformity has to be adopted by the Courts while granting non-pecuniary damages. The Supreme Court in [PRECEDENT] and in [PRECEDENT] granted only ` 25,000/- (in total to all the claimants) under the head of loss of love and affection. Thus, I would reduce the compensation under this head to ` 25,000/- only.
15. The loss to estate awarded by the Claims Tribunal as `5,000/- is enhanced to `10,000/-.
16. Thus, the overall compensation comes to `5,25,589/-.
17. In view of the foregoing discussion, the Appeal is allowed. The compensation stands reduced from `7,09,568/- to ` 5,25,589/-.
18. The excess amount of `1,83,979/- along with proportionate interest and the interest accrued, if any, during the pendency of the Appeal shall be refunded to the Appellant Insurance Company.
19. The statutory deposit of `25,000/- be refunded to the Appellant Insurance Company.
20. Pending Applications also stand disposed of.
([ENTITY]) JUDGE OCTOBER 19, 2012 vk