Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Judgment delivered on:10 March, 2014
+ MAC.APP. 521/2012
PUSHPA & ORS. ..... Appellants
Represented by: Mr.Amit Kumar Pandey,
Advocate.
Versus
S GURBAKSH SINGH & ORS. .... Respondents
Represented by: Mr.A.K.Soni, Advocate for
Respondent No.5/Insurance
Company.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. The instant appeal is preferred against the impugned award dated
25.07.2011, whereby the learned Tribunal has granted compensation for an
amount of Rs.6,04,850/- with interest at the rate of 7.5% per annum from
the date of filing of the claim petition till realization of the amount (except
for the period not specifically allowed).
2. While deciding the issue of negligence, the learned Tribunal has
opined that the deceased was also negligent in driving the Maruti Van
No.DL2C AC 0641 and accordingly apportioned 50% negligence upon the
deceased and 50% on the driver of the offending Bus No.DL1PB 0652.
MAC.APP. 521/2012 Page 1 of 11
Accordingly, directed the respondent No.5/Insurance Company to pay 50%
of the total compensation, i.e., Rs.3,02,450/- with interest as noted above in
favour of the appellant.
3. Brief facts of the case are that on 21.05.2005, Shri Jai Narayan Gupta,
the deceased was driving the Maruti Van No.DL2C AC 0641 and one Shri
Shyam Shreshtha was sitting in the said Van. When they reached near
Nirman Vihar Bus Stop, Vikas Marg, New Delhi, due to sudden application
of breaks by the driver of the Bus No.DL1PB 0652, it collided with the said
Bus, as a result of which both of them received injuries, however, the
deceased suffered fatal injuries.
4. Learned counsel appearing on behalf of the appellants submits that
PW1 Smt. Pushpa Devi, wife of the deceased, deposed that on 21.05.2005,
the deceased alonwith Shri Shyam Shreshtha was returning from Patparganj
and proceeding towards Darya Ganj in Maruti Van No.DL2C AC 0641.
When they reached near Nirman Vihar Bus Stop, Vikas Marg, New Delhi,
the driver of an ongoing Bus No.DL1PB 0652, applied sudden breaks, due to
which, they collided with the same.
5. PW2 Shri Shyam Shreshtha deposed that on 21.05.2005, he was in
Maruti Van No.DL2C AC 0641 and the deceased was driving the said
vehicle. A Bus No.DL1PB 0652 was being driven at a high speed and the
driver of the said Bus negligently applied sudden breaks, resultantly, vehicle
in which they were travelling collided with the Bus as it was behind the said
Bus. He further deposed that the accident took place because of rash and
negligent driving of the driver of the said Bus. He immediately made a
MAC.APP. 521/2012 Page 2 of 11
complaint to the police.
6. Learned counsel for the appellant further submits that ASI Suresh
Pal, IO of the case was examined as R3W1, who registered the FIR on the
complaint of Shri Kishanpal, Conductor of the Bus No.DL1PB 0652 against
deceased Shri Jai Narayan Gupta. The chargesheet could not be filed
because FIR was being made against the deceased. Accordingly, a
cancellation report Ex.R3W1/1 was filed therein. He also proved the
statement of Shri Kishanpal as Ex.R3W1/2 and stated that he had also
recorded statement Ex.REW1/3 of the deceased Jai Narayan Gupta, wherein
the deceased had specifically stated that when he reached near Bus Stop of
Madhuban Chowk, driver of the Bus No.DL1PB 0652 applied sudden
breaks. He tried to control the vehicle, however, failed to do so. He further
stated that Shri Shyam Shreshtha was also travelling with him, who also got
injured in the said accident, accordingly, action be taken against the culprit.
7. During his cross-examination, ASI Suresh Pal stated that he had not
recorded the statement of PW2 Shri Shyam Shreshtha, who was also injured
in the accident in question.
8. Learned counsel submits that though IO had admitted that Shri
Shyam Shreshtha was also travelling in the Maruti Van, despite that he did
not record his statement and lodged the FIR against the deceased on the
statement of Shri Kishanpal, Conductor of the offending Bus, who stated
that the Bus was stationed at the Bus Stop Nirman Vihar, as it was
mechanically out of order and the Maruti Van No.DL2C AC 0641 hit the
said Bus from behind. He further stated that neither the driver nor any
MAC.APP. 521/2012 Page 3 of 11
passenger was inside the said Bus.
9. Learned counsel further submits that in para 13 of the impugned
award, the learned Tribunal has recorded that there was a gross contradiction
in the statement of Shri Kishanpal, who lodged the FIR. PW2 has stated that
the driver of the Bus No. DL 1PB 0652 applied sudden brakes and accident
was caused because of negligence of respondent No. 1.
10. R3W1, ASI Suresh Pal, IO of the criminal case recorded the statement
of deceased which shows that the driver of the Bus applied the brakes and
the deceased could not control the van and it collided with the Bus.
11. In view of the facts discussed above, the learned Tribunal has opined
that the driver of the Bus No. DL-1PB-0652 applied sudden brakes and that
driver of the Maruti Van No. DL-2CAC-6041 could not control the vehicle
and hit the Bus from behind. The material placed on record show that there
was negligence on the part of driver of Bus bearing no. DL-1PB-0652 but at
the same time there was negligence on the part of deceased also who did not
maintain proper distance from the Bus to avoid any accident in case of
sudden application of brakes by the driver of the Bus. Further recorded,
statement of deceased Ex. R3W1/3, as recorded by R3W1, IO of the
criminal case, shows that deceased could not control the Maruti Van. Thus,
it was the duty of the driver of the bus not to apply sudden brakes unless
warranted by the circumstances. No such circumstances have come forth in
the present case necessitating the application of sudden brakes. It was further
recorded that it was also the duty of the vehicle following the other vehicle
to maintain proper distance from the vehicle plying ahead to avoid any
MAC.APP. 521/2012 Page 4 of 11
accident in case of sudden application of brakes by the driver of the vehicle
ahead. Thus, the learned Tribunal apportioned the contributory negligence
50% each of the driver of the Bus and the driver of Maruti Van, i.e., the
deceased.
12. Learned counsel for the appellants submits that neither statement of
deceased Ex.R3W1/3 shows that he was at fault nor PW2 Shri Shyam
Shreshtha stated that the deceased was at fault. Despite that, the learned
Tribunal has apportioned 50% liability upon the deceased.
13. Learned counsel further argued that in paras 4 and 5 of the claim
petition, the appellant has specifically stated that the deceased was working
as a driver with M/s Visan Minpro & Trading Company, 3833, Pataudi
House, Daryaganj, New Delhi, and was earning Rs.3,250/- per month. The
appellants failed to produce his employment and the salary earned by him,
therefore, the learned Tribunal has assessed his monthly income as
Rs.3,044/- applicable to an unskilled person at the relevant time.
14. Learned counsel for the appellants submits that the deceased was
working as a driver and admittedly died in the accident, while driving the
Maruti Van, as noted above. Thus, this fact itself proves that the deceased
was a driver. Accordingly, the learned Tribunal ought to have considered
the salary of the deceased as per the Minimum Wages Act, 1948, applicable
to a skilled person at the relevant time.
15. He has prayed to this Court that salary of the deceased may be
considered as Rs.3,468/- as per the minimum wages applicable to a skilled
person at the relevant time and the compensation amount may be enhanced.
MAC.APP. 521/2012 Page 5 of 11
16. Learned counsel also pointed out that at the time of the accident, the
age of the deceased was 50 years, however, the learned Tribunal has added
50% in the actual income of the deceased towards future prospects. He
fairly conceded that keeping in view the age of the deceased and the settled
law, the claimants are entitled for enhancement of 30% of the actual income
of the deceased towards future prospects.
17. Learned counsel further submits that the compensation granted by the
learned Tribunal on account of non-pecuniary damages like Rs.10,000/- for
loss of love and affection, Rs.10,000/- for loss of consortium and Rs.5,000/-
for funeral expenses is also on a very lower side.
18. He submitted that on the date of the accident, the deceased left behind
seven dependants, including his wife, three daughters, two sons and widow
mother, who died during the pendency of the claim petition. Keeping in
view the nature of dependency, the learned Tribunal ought to have granted
compensation on account of non-pecuniary damages on a higher side.
19. On the other hand, learned counsel appearing on behalf of the
respondent No.5/ Insurance Company submitted that PW2, Shri Shyam
Shreshtha was not travelling in the Maruti Van with the deceased. He was a
planted witness. Had he been travelling with the deceased, he would have
made the complaint against the driver of the offending Bus and would have
got recorded his statement, whereas the FIR was lodged on the statement of
the Conductor of the Bus.
20. Learned counsel further submits that PW2 was of the opinion that the
deceased was at fault, therefore, he did not come forward and made any
MAC.APP. 521/2012 Page 6 of 11
complaint against lodging of the FIR against the deceased. Since the
deceased himself was negligent as he hit the Maruti Van in the Bus which
was going ahead, therefore, the learned Tribunal has assessed 50%
contributory negligence on the part of the deceased. Moreover, as per the
statement of PW2, he asked the deceased to apply the brakes properly,
however, he failed to do so.
21. Learned counsel further submits that the appellants have failed to
prove the employment and avocation of the deceased with the Establishment
mentioned above, therefore, the learned Tribunal has assessed the income of
the deceased as Rs.3,044/- per month as per the minimum wages applicable
to an unskilled person on the date of the accident and submitted that on this
issue no interference is required from this Court.
22. Learned counsel for the respondent No.5/Insurance Company further
submitted that so far as the non-pecuniary damages are concerned, keeping
in mind the facts and circumstances of the case, the learned Tribunal has
sufficiently granted the compensation on these counts. Hence, on this issue
also no interference is required from this Court.
23. I have heard the learned counsel for the parties and have perused the
record.
24. Testimony of PW1, Smt. Pushpa Devi, widow of the deceased has
established that deceased left behind widow wife, three daughters and two
sons. PW-1 specifically deposed that on 21.05.2005, her husband alongwith
Shri Shyam Shreshtha was returning from Patparganj when they met with an
accident as noted above.
MAC.APP. 521/2012 Page 7 of 11
25. PW2, Shri Shyam Shreshtha, in his evidence, has specifically stated
that the driver of the offending Bus was negligent as he had applied sudden
brakes due to which the Maruti Van in which they were travelling, could not
be controlled by the deceased and accordingly collided with the Bus. He
further deposed that the statement of the deceased was recorded by the
police. He had also received injuries in the accident. However, the IO of
the criminal case lodged the FIR against the deceased, wherein a
cancellation report was filed thereafter.
26. R3W1, ASI Suresh Pal, IO of the case, has also deposed that Shri
Shyam Shreshtha was travelling in the Maruti Van and received injuries.
However, he did not record his statement.
27. On the issue of contributory negligence, testimonies of PW2 and
R3W1 suggest that the offending Bus, going ahead of Maruti Van, which
was being driven at a high speed, rashly and negligently by its driver, who
applied sudden brakes, in consequence of the same the deceased could not
apply the brakes of Maruti Van, which was behind the said Bus due to which
it hit the said Bus.
28. Keeping in view the manner in which the accident had taken place, I
am of the opinion that the driver of the Maruti Van No.DL2C AC 0641, i.e.,
the deceased, was not at fault as in his statement Ex.R3W1/3, he deposed
that driver of the offending Bus had applied immediate brakes, however, he
tried his level best, but could not stop the van, resultantly the accident in
question occurred. Moreover, no suggestion was put forth to any witness
that he was driving the Maruti Van negligently by the Insurance Company.
MAC.APP. 521/2012 Page 8 of 11
29. So far as the avocation of the deceased is concerned, case of the
appellants/claimants throughout was that the deceased was working as a
driver with the Establishment noted above. In his statement Ex.R3W1/3, the
deceased himself stated that he was working as a driver and PW2, Shri
Shyam Shreshtha also deposed that the vehicle was being driven by the
deceased. Moreover, no contrary evidence has been led by the respondent
No.5/Insurance Company. Therefore, there was no occasion before the
learned Tribunal not to consider the monthly income of the deceased
applicable to a skilled person as per the Minimum Wages Act, 1948.
30. Therefore, as per the Minimum Wages Act, 1948, the minimum
wages applicable to a skilled person at the relevant time was Rs.3,468.90/-.
Hence, in view of the above, I take the monthly income of the deceased as
Rs.3,470/-.
31. As the issue of future prospects is concerned, keeping in view the age
of the deceased, i.e., 50 years at the time of the accident, and the settled
position of law, future prospects is reduced to 30%.
32. So far as the non-pecuniary damages are concerned, the deceased left
behind seven dependants, i.e., wife, three daughters, two sons and widow
mother, who expired during the pendency of the claim petition. The
deceased was working as a driver and maintaining his large family.
Therefore, considering all the facts and circumstances of the case and
following the dictum of Rajesh and Ors. Vs. Rajbir Singh and Ors. 2013
(6) SCALE 563, I enhance the compensation on account of loss of love and
affection to Rs.1,00,000/-, for loss of consortium to Rs.1,00,000/- and for
MAC.APP. 521/2012 Page 9 of 11
funeral expenses to Rs.25,000/-
33. Accordingly, the compensation amount comes as under:
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Judgment delivered on:10 March, 2014
+ MAC.APP. 521/2012
PUSHPA & ORS. ..... Appellants
Represented by: Mr.Amit Kumar Pandey,
Advocate.
Versus
S GURBAKSH SINGH & ORS. .... Respondents
Represented by: Mr.A.K.Soni, Advocate for
Respondent No.5/Insurance
Company.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. The instant appeal is preferred against the impugned award dated
25.07.2011, whereby the learned Tribunal has granted compensation for an
amount of Rs.6,04,850/- with interest at the rate of 7.5% per annum from
the date of filing of the claim petition till realization of the amount (except
for the period not specifically allowed).
2. While deciding the issue of negligence, the learned Tribunal has
opined that the deceased was also negligent in driving the Maruti Van
No.DL2C AC 0641 and accordingly apportioned 50% negligence upon the
deceased and 50% on the driver of the offending Bus No.DL1PB 0652.
MAC.APP. 521/2012 Page 1 of 11
Accordingly, directed the respondent No.5/Insurance Company to pay 50%
of the total compensation, i.e., Rs.3,02,450/- with interest as noted above in
favour of the appellant.
3. Brief facts of the case are that on 21.05.2005, Shri Jai Narayan Gupta,
the deceased was driving the Maruti Van No.DL2C AC 0641 and one Shri
Shyam Shreshtha was sitting in the said Van. When they reached near
Nirman Vihar Bus Stop, Vikas Marg, New Delhi, due to sudden application
of breaks by the driver of the Bus No.DL1PB 0652, it collided with the said
Bus, as a result of which both of them received injuries, however, the
deceased suffered fatal injuries.
4. Learned counsel appearing on behalf of the appellants submits that
PW1 Smt. Pushpa Devi, wife of the deceased, deposed that on 21.05.2005,
the deceased alonwith Shri Shyam Shreshtha was returning from Patparganj
and proceeding towards Darya Ganj in Maruti Van No.DL2C AC 0641.
When they reached near Nirman Vihar Bus Stop, Vikas Marg, New Delhi,
the driver of an ongoing Bus No.DL1PB 0652, applied sudden breaks, due to
which, they collided with the same.
5. PW2 Shri Shyam Shreshtha deposed that on 21.05.2005, he was in
Maruti Van No.DL2C AC 0641 and the deceased was driving the said
vehicle. A Bus No.DL1PB 0652 was being driven at a high speed and the
driver of the said Bus negligently applied sudden breaks, resultantly, vehicle
in which they were travelling collided with the Bus as it was behind the said
Bus. He further deposed that the accident took place because of rash and
negligent driving of the driver of the said Bus. He immediately made a
MAC.APP. 521/2012 Page 2 of 11
complaint to the police.
6. Learned counsel for the appellant further submits that ASI Suresh
Pal, IO of the case was examined as R3W1, who registered the FIR on the
complaint of Shri Kishanpal, Conductor of the Bus No.DL1PB 0652 against
deceased Shri Jai Narayan Gupta. The chargesheet could not be filed
because FIR was being made against the deceased. Accordingly, a
cancellation report Ex.R3W1/1 was filed therein. He also proved the
statement of Shri Kishanpal as Ex.R3W1/2 and stated that he had also
recorded statement Ex.REW1/3 of the deceased Jai Narayan Gupta, wherein
the deceased had specifically stated that when he reached near Bus Stop of
Madhuban Chowk, driver of the Bus No.DL1PB 0652 applied sudden
breaks. He tried to control the vehicle, however, failed to do so. He further
stated that Shri Shyam Shreshtha was also travelling with him, who also got
injured in the said accident, accordingly, action be taken against the culprit.
7. During his cross-examination, ASI Suresh Pal stated that he had not
recorded the statement of PW2 Shri Shyam Shreshtha, who was also injured
in the accident in question.
8. Learned counsel submits that though IO had admitted that Shri
Shyam Shreshtha was also travelling in the Maruti Van, despite that he did
not record his statement and lodged the FIR against the deceased on the
statement of Shri Kishanpal, Conductor of the offending Bus, who stated
that the Bus was stationed at the Bus Stop Nirman Vihar, as it was
mechanically out of order and the Maruti Van No.DL2C AC 0641 hit the
said Bus from behind. He further stated that neither the driver nor any
MAC.APP. 521/2012 Page 3 of 11
passenger was inside the said Bus.
9. Learned counsel further submits that in para 13 of the impugned
award, the learned Tribunal has recorded that there was a gross contradiction
in the statement of Shri Kishanpal, who lodged the FIR. PW2 has stated that
the driver of the Bus No. DL 1PB 0652 applied sudden brakes and accident
was caused because of negligence of respondent No. 1.
10. R3W1, ASI Suresh Pal, IO of the criminal case recorded the statement
of deceased which shows that the driver of the Bus applied the brakes and
the deceased could not control the van and it collided with the Bus.
11. In view of the facts discussed above, the learned Tribunal has opined
that the driver of the Bus No. DL-1PB-0652 applied sudden brakes and that
driver of the Maruti Van No. DL-2CAC-6041 could not control the vehicle
and hit the Bus from behind. The material placed on record show that there
was negligence on the part of driver of Bus bearing no. DL-1PB-0652 but at
the same time there was negligence on the part of deceased also who did not
maintain proper distance from the Bus to avoid any accident in case of
sudden application of brakes by the driver of the Bus. Further recorded,
statement of deceased Ex. R3W1/3, as recorded by R3W1, IO of the
criminal case, shows that deceased could not control the Maruti Van. Thus,
it was the duty of the driver of the bus not to apply sudden brakes unless
warranted by the circumstances. No such circumstances have come forth in
the present case necessitating the application of sudden brakes. It was further
recorded that it was also the duty of the vehicle following the other vehicle
to maintain proper distance from the vehicle plying ahead to avoid any
MAC.APP. 521/2012 Page 4 of 11
accident in case of sudden application of brakes by the driver of the vehicle
ahead. Thus, the learned Tribunal apportioned the contributory negligence
50% each of the driver of the Bus and the driver of Maruti Van, i.e., the
deceased.
12. Learned counsel for the appellants submits that neither statement of
deceased Ex.R3W1/3 shows that he was at fault nor PW2 Shri Shyam
Shreshtha stated that the deceased was at fault. Despite that, the learned
Tribunal has apportioned 50% liability upon the deceased.
13. Learned counsel further argued that in paras 4 and 5 of the claim
petition, the appellant has specifically stated that the deceased was working
as a driver with M/s Visan Minpro & Trading Company, 3833, Pataudi
House, Daryaganj, New Delhi, and was earning Rs.3,250/- per month. The
appellants failed to produce his employment and the salary earned by him,
therefore, the learned Tribunal has assessed his monthly income as
Rs.3,044/- applicable to an unskilled person at the relevant time.
14. Learned counsel for the appellants submits that the deceased was
working as a driver and admittedly died in the accident, while driving the
Maruti Van, as noted above. Thus, this fact itself proves that the deceased
was a driver. Accordingly, the learned Tribunal ought to have considered
the salary of the deceased as per the Minimum Wages Act, 1948, applicable
to a skilled person at the relevant time.
15. He has prayed to this Court that salary of the deceased may be
considered as Rs.3,468/- as per the minimum wages applicable to a skilled
person at the relevant time and the compensation amount may be enhanced.
MAC.APP. 521/2012 Page 5 of 11
16. Learned counsel also pointed out that at the time of the accident, the
age of the deceased was 50 years, however, the learned Tribunal has added
50% in the actual income of the deceased towards future prospects. He
fairly conceded that keeping in view the age of the deceased and the settled
law, the claimants are entitled for enhancement of 30% of the actual income
of the deceased towards future prospects.
17. Learned counsel further submits that the compensation granted by the
learned Tribunal on account of non-pecuniary damages like Rs.10,000/- for
loss of love and affection, Rs.10,000/- for loss of consortium and Rs.5,000/-
for funeral expenses is also on a very lower side.
18. He submitted that on the date of the accident, the deceased left behind
seven dependants, including his wife, three daughters, two sons and widow
mother, who died during the pendency of the claim petition. Keeping in
view the nature of dependency, the learned Tribunal ought to have granted
compensation on account of non-pecuniary damages on a higher side.
19. On the other hand, learned counsel appearing on behalf of the
respondent No.5/ Insurance Company submitted that PW2, Shri Shyam
Shreshtha was not travelling in the Maruti Van with the deceased. He was a
planted witness. Had he been travelling with the deceased, he would have
made the complaint against the driver of the offending Bus and would have
got recorded his statement, whereas the FIR was lodged on the statement of
the Conductor of the Bus.
20. Learned counsel further submits that PW2 was of the opinion that the
deceased was at fault, therefore, he did not come forward and made any
MAC.APP. 521/2012 Page 6 of 11
complaint against lodging of the FIR against the deceased. Since the
deceased himself was negligent as he hit the Maruti Van in the Bus which
was going ahead, therefore, the learned Tribunal has assessed 50%
contributory negligence on the part of the deceased. Moreover, as per the
statement of PW2, he asked the deceased to apply the brakes properly,
however, he failed to do so.
21. Learned counsel further submits that the appellants have failed to
prove the employment and avocation of the deceased with the Establishment
mentioned above, therefore, the learned Tribunal has assessed the income of
the deceased as Rs.3,044/- per month as per the minimum wages applicable
to an unskilled person on the date of the accident and submitted that on this
issue no interference is required from this Court.
22. Learned counsel for the respondent No.5/Insurance Company further
submitted that so far as the non-pecuniary damages are concerned, keeping
in mind the facts and circumstances of the case, the learned Tribunal has
sufficiently granted the compensation on these counts. Hence, on this issue
also no interference is required from this Court.
23. I have heard the learned counsel for the parties and have perused the
record.
24. Testimony of PW1, Smt. Pushpa Devi, widow of the deceased has
established that deceased left behind widow wife, three daughters and two
sons. PW-1 specifically deposed that on 21.05.2005, her husband alongwith
Shri Shyam Shreshtha was returning from Patparganj when they met with an
accident as noted above.
MAC.APP. 521/2012 Page 7 of 11
25. PW2, Shri Shyam Shreshtha, in his evidence, has specifically stated
that the driver of the offending Bus was negligent as he had applied sudden
brakes due to which the Maruti Van in which they were travelling, could not
be controlled by the deceased and accordingly collided with the Bus. He
further deposed that the statement of the deceased was recorded by the
police. He had also received injuries in the accident. However, the IO of
the criminal case lodged the FIR against the deceased, wherein a
cancellation report was filed thereafter.
26. R3W1, ASI Suresh Pal, IO of the case, has also deposed that Shri
Shyam Shreshtha was travelling in the Maruti Van and received injuries.
However, he did not record his statement.
27. On the issue of contributory negligence, testimonies of PW2 and
R3W1 suggest that the offending Bus, going ahead of Maruti Van, which
was being driven at a high speed, rashly and negligently by its driver, who
applied sudden brakes, in consequence of the same the deceased could not
apply the brakes of Maruti Van, which was behind the said Bus due to which
it hit the said Bus.
28. Keeping in view the manner in which the accident had taken place, I
am of the opinion that the driver of the Maruti Van No.DL2C AC 0641, i.e.,
the deceased, was not at fault as in his statement Ex.R3W1/3, he deposed
that driver of the offending Bus had applied immediate brakes, however, he
tried his level best, but could not stop the van, resultantly the accident in
question occurred. Moreover, no suggestion was put forth to any witness
that he was driving the Maruti Van negligently by the Insurance Company.
MAC.APP. 521/2012 Page 8 of 11
29. So far as the avocation of the deceased is concerned, case of the
appellants/claimants throughout was that the deceased was working as a
driver with the Establishment noted above. In his statement Ex.R3W1/3, the
deceased himself stated that he was working as a driver and PW2, Shri
Shyam Shreshtha also deposed that the vehicle was being driven by the
deceased. Moreover, no contrary evidence has been led by the respondent
No.5/Insurance Company. Therefore, there was no occasion before the
learned Tribunal not to consider the monthly income of the deceased
applicable to a skilled person as per the Minimum Wages Act, 1948.
30. Therefore, as per the Minimum Wages Act, 1948, the minimum
wages applicable to a skilled person at the relevant time was Rs.3,468.90/-.
Hence, in view of the above, I take the monthly income of the deceased as
Rs.3,470/-.
31. As the issue of future prospects is concerned, keeping in view the age
of the deceased, i.e., 50 years at the time of the accident, and the settled
position of law, future prospects is reduced to 30%.
32. So far as the non-pecuniary damages are concerned, the deceased left
behind seven dependants, i.e., wife, three daughters, two sons and widow
mother, who expired during the pendency of the claim petition. The
deceased was working as a driver and maintaining his large family.
Therefore, considering all the facts and circumstances of the case and
following the dictum of Rajesh and Ors. Vs. Rajbir Singh and Ors. 2013
(6) SCALE 563, I enhance the compensation on account of loss of love and
affection to Rs.1,00,000/-, for loss of consortium to Rs.1,00,000/- and for
MAC.APP. 521/2012 Page 9 of 11
funeral expenses to Rs.25,000/-
33. Accordingly, the compensation amount comes as under:
| Sl.<br>No. | Heads of<br>Compensation | Compensation<br>granted by ld.<br>Tribunal | Compensation<br>granted by this<br>Court |
|---|---|---|---|
| 1. | Loss of<br>dependency | Rs.5,69,842/- | Rs.5,62,972.8 |
| 2. | Loss of love and<br>affection | Rs. 10,000/- | Rs.1,00,000/- |
| 3. | Loss of estate | Rs. 10,000/- | Rs. 10,000/- |
| 4. | Loss of consortium | Rs. 10,000/- | Rs.1,00,000/- |
| 5. | For funeral<br>expenses | Rs. 5,000/- | Rs. 25,000/- |
| TOTAL | Rs.6,04,842/-<br>(rounded off to<br>Rs.6,04,850/-) | Rs.7,97,972.8<br>(rounded off to<br>Rs.7,97,980/-) |
34. Accordingly, the total compensation is assessed at Rs.7,97,980/-.
35. Hence, the compensation is enhanced to Rs.1,93,130/- (Rs.7,97,980/-
- Rs.6,04,850/-).
36. The enhanced compensation amount shall carry interest @ 7.5% per
annum from the date of filing of the claim petition till realization of the
amount.
37. I note, vide judgment dated 25.07.2011, the learned Tribunal directed
the respondent No.5/Insurance Company to deposit 50% of the awarded
amount, i.e., Rs.3,02,450/- inclusive of interim compensation with interest at
the rate of 7.5% per annum (except for the period not specifically allowed)
from the date of filing of the petition till its realization.
MAC.APP. 521/2012 Page 10 of 11
38. Since the finding of the learned Tribunal qua contributory negligence
on the part of the deceased has been set aside, therefore, the respondent
No.5/Oriental Insurance Co. Ltd. is directed to deposit the balance
compensation amount of Rs.4,95,530/- [Rs.7,97,980 – 3,02,450] with
interest at the rate of 7.5% per annum from the date of filing of the claim
petition till realization of the amount (except for the period not specifically
allowed) with the Registrar General of this Court within a period of six
weeks from today, failing which, appellants/claimants shall be entitled for
penal interest @ 12% per annum on account of delayed payment.
39. On deposit, the Registrar General is directed to release the amount in
favour of the appellants/claimants proportionately in terms of the award
dated 25.07.2011 passed by the learned Tribunal.
40. In view of the above, the appeal is allowed.
SURESH KAIT, J.
MARCH 10, 2014
sb/RS
MAC.APP. 521/2012 Page 11 of 11