Case: New India Assurance Company Limited Vs. Joginderkaur Satwindersingh Padda &amp; Others

person, viz., Vaidya, is available as an eye-witness to actually narrate with any accuracy what exactly transpired. Once we find that even that evidence is insufficient or not sufficiently cogent to warrant credibility, then there is no reason to find fault with the impugned judgment at least on this score. We must also bear in mind that Vaidya chose, for whatever reason, not to file a written statement. This is indeed strange for he was a party respondent and in response could have clearly set out in his pleadings his version of the events.21. Mr. Mahadiks emphasis, therefore, on Vaidyas testimony is, in our view, without foundation. Vaidyas evidence that he was proceeding at 10-15 kmph is uncompelling. It is argued that correctly read the evidence shows that Vaidya had almost negotiated the turn. This is the purest conjecture; Vaidya himself does not say so and he also does not say, as we have noted, in which direction he was turning, a matter only he could depose to, and one that makes all the difference. The submission that Vaidyas car was damaged from the rear also does not in and of itself establish negligence on Satwindersinghs part. As a matter of law, contributory negligence is a matter that must be both pleaded and proved. Vaidya, as we have noted, filed no written statement, though certainly he could have taken such a plea. More importantly, in its own written statement, the Insurance Company also did not take the plea of contributory negligence. It could have done so, for the basis of Mr. Mahadiks submission is simply that the rear of Vaidyas car was damaged and that this, ipso facto, establishes contributory negligence. The fact of the rear of the car having been damaged was known from the time of the accident onward, and certainly could not have been unknown to the Insurance Company before it filed its written statement. Yet no such plea is to be found in its written statement.22. In any case, it is well settled that the Tribunal is not bound by strict rules of evidence or pleading and that in matters such as this, and indeed generally, a Court must be guided by an assessment of the preponderance of probabilities. Mr. Vaidyas narrative seems to us entirely improbable. That he attempted to deflect blame is evident from his testimony when he says that he was told by others that the deceased was always riding his bike at a high speed. This evidence was quite correctly not considered by the Court at all. It violates the rule against hearsay evidence. It is no proof of rashness or negligence (or habitual rashness or negligence) on the part of Satwindersingh.23. This leaves us with the question of an assessment of the deceaseds income. The income-tax returns for the years 2006-2007, 2007-2008 and for the Assessment Year 2008-2009 (i.e. Financial Year from 1st April 2007 to 31st March 2008) were introduced in evidence. In the impugned judgment, the Tribunal has taken the deceaseds income as Rs.6,00,000/-. A question is raised before us by the learned counsel for the Appellants as to how the Tribunal could possibly have arrived at this figure. The answer lies in the last return for the Assessment Year 2008-2009. This shows a total salary of the deceased as Rs.6,30,000/- with tax deductions approximately of Rs.30,000/-, leaving an income of Rs.6,00,000/-. This is the figure that has been accepted by the MACT. We are not impressed by the submission that the income for the previous years was lower or that it is an average that should be taken.24. From the income Rs.6,00,000/-, one-fourth amount has been deducted since the deceased was survived by his widow and two minors. This leads to a figure of Rs.4,50,000/-. At the time of his death Mr. Satwindersingh was 39 years old and, therefore, following the decision of the Supreme Court in Sarla Verma v Delhi Transport Corporation, (2009) 6 SCC 121 : 2009 ACJ 1298 (SC), a multiplier of 16 has been taken. In addition, the Tribunal granted Rs.25,000/- for pain and suffering and Rs.10,000/- for loss of consortium. These are reasonable. In addition, the Tribunal took an amount of Rs.10,00,000/- for loss of future income given the returns. Thus, an amount of Rs.82,40,000/- was awarded.25. Before us reliance was placed by the learned counsel for the Appellants on the decision of the Supreme Court in Surenderkumar Arora v Dr. Manoj Bisla, 2012 ACJ 1305. In that decision, an important distinction is drawn between a claim made under Section 166 of the Motor Vehicles Act and one made under Section 163-A. The present case also arises from an application under Section 166 of the Act. We find that the decision in Surenderkumar does not assist the Appellant in any way. As we have noted, the negligence of the 5th Respondent to his Appeal must be held to have been established inter alia from his own evidence. The improbability of what he has suggested is plain to see. What actually transpired was a set of facts especially within his personal knowledge, and if it was his case that he was not negligent or rash, and since he tendered himself as a witness, it was for him to make a full disclosure of those facts. It is in this context that his failure to file a written statement must be seen. For its part, the Insurance Company only said (and quite correctly) that it had no knowledge of this aspect of the matter. We may also note that before the Tribunal, the inquest panchnama, the spot panchnama and the FIR were all filed in evidence and were considered by the Tribunal, which held that these show that Vaidya was booked for rash and negligent driving in a criminal prosecution. The Tribunal therefore correctly held that the claimants had discharged their evidentiary burden.26. In these circumstances, we see no reason to interfere with the impugned Judgment and Award. There is no merit in the Appeal.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We have considered both submissions with care. For the reasons that follow, we are unable to acceptx returns for the years8 and for the Assessment Year(i.e. Financial Year from 1st April 2007 to 31st March 2008) were introduced in evidence. In the impugned judgment, the Tribunal has taken the deceaseds income as Rs.A question is raised before us by the learned counsel for the Appellants as to how the Tribunal could possibly have arrived at this figure. The answer lies in the last return for the Assessment YearThis shows a total salary of the deceased as Rs.6,30,000/with tax deductions approximately ofleaving an income of Rs.This is the figure that has been accepted by the MACT. We are not impressed by the submission that the income for the previous years was lower or that it is an average that should be taken.24. From the incomeh amount has been deducted since the deceased was survived by his widow and two minors. This leads to a figure of Rs.At the time of his death Mr. Satwindersingh was 39 years old and, therefore, following the decision of the Supreme Court in Sarla Verma v Delhi Transport Corporation, (2009) 6 SCC 121   : 2009 ACJ 1298 (SC), a multiplier of 16 has been taken. In addition, the Tribunal granted Rs.25,000/for pain and suffering and Rs.10,000/for loss of consortium. These are reasonable. In addition, the Tribunal took an amount of Rs.10,00,000/for loss of future income given the returns. Thus, an amount of Rs.82,40,000/was awarded.25. Before us reliance was placed by the learned counsel for the Appellants on the decision of the Supreme Court in Surenderkumar Arora v Dr. Manoj Bisla, 2012 ACJ 1305.   In that decision, an important distinction is drawn between a claim made under Section 166 of the Motor Vehicles Act and one made under SectionThe present case also arises from an application under Section 166 of the Act. We find that the decision in Surenderkumar does not assist the Appellant in any way. As we have noted, the negligence of the 5th Respondent to his Appeal must be held to have been established inter alia from his own evidence. The improbability of what he has suggested is plain to see. What actually transpired was a set of facts especially within his personal knowledge, and if it was his case that he was not negligent or rash, and since he tendered himself as a witness, it was for him to make a full disclosure of those facts. It is in this context that his failure to file a written statement must be seen. For its part, the Insurance Company only said (and quite correctly) that it had no knowledge of this aspect of the matter. We may also note that before the Tribunal, the inquest panchnama, the spot panchnama and the FIR were all filed in evidence and were considered by the Tribunal, which held that these show that Vaidya was booked for rash and negligent driving in a criminal prosecution. The Tribunal therefore correctly held that the claimants had discharged their evidentiary burden.26. In these circumstances, we see no reason to interfere with the impugned Judgment and Award. There is no merit in the Appeal.