M/S NATIONAL INSURANCE COMPANY LTD vs HEMA DEVI & ORS

2024-03-01 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 15th January, 2023
Judgment pronounced on : 1st March, 2024
+ MAC. APP. 753/2018 & CM APPL. 9128/2019, CM APPL.
34523/2018 & CM APPL. 34525/2018
NATIONAL INSURANCE CO. LTD ….. Appellant
Through: Mr. Sandeep Kumar Dubey and
Mr. Bipin Kumar Dubey, Advs.
versus
HEMA DEVI & ORS. ….. Respondents
Through: Mr. Ram Singh, Adv.
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
J U D G M E N T

1. This judgment shall decide the present appeal filed by the
appellant/Insurance Company in terms of Section 173 of the Motor
Vehicles Act, 19881 assailing the impugned order dated 25.04.2018
passed by the Presiding Officer, Motor Accident Claims Tribunal,
North West District, Rohini Courts, Delhi2, in petition No.314/093
(New No.500440-16), whereby the learned Tribunal granted
compensation in favour of the claimants.

1 MV Act
2 Tribunal

FACTUAL BACKGROUND:

2. Briefly stated, it was the case of the claimants that on
29.06.2005, at about 10 P.M., Sh. Bhagwat Singh aged 41 years
(hereinafter referred to as the deceased”) was standing at a bus stop at

3 Claim petition
4 Section 2(27) of MV Act: motor cycle means a two-wheeled motor vehicle, inclusive of any
detachable side-car having an extra wheel, attached to the motor vehicle;
5 Section 2(9) of MV Act: driver includes, in relation to a motor vehicle which is drawn by
another motor vehicle, the person who acts as a steersman of the drawn vehicle;
6 Section 2(30) of MV Act: owner means a person in whose name a motor vehicle stands
registered, and where such person is a minor, the guardian of such minor, and in relation to a
motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an
agreement of hypothecation, the person in possession of the vehicle under that agreement;
7 IPC

Azadpur Flyover, Delhi, when suddenly one a Motorcycle CBZ Hero
Honda,4 bearing registration No. UP-27F-7426 (hereinafter referred to
as the offending vehicle”) came at a high speed, being driven in a rash
and negligent manner, hit Bhagwat Singh/deceased, as a result of
which, the deceased fell down on the road and sustained grievous
injuries.
3. It was further mentioned in the claim petition that thereafter,
one Sh. Piyush Gupta/driver5-cum-registered owner6/respondent No.1
along with one of his associates, took the deceased away from the
place of accident on the pretext that they were taking him to the
hospital but instead, they left him in pain at Satyawati College
Flyover, Ashok Vihar, Delhi, and fled away with the offending
vehicle. Thereafter, the deceased was admitted to BJRM hospital,
Jahangirpuri, Delhi and from there, he was shifted to a Trauma Centre
where he remained admitted till 06.07.2005 and subsequently, died on
06.07.2005 at about 1 P.M. An FIR No.439/05 under Section
279/337/304A of Indian Penal Code, 18607 was registered at PS
Ashok Vihar on 06.07.2005.
4. The respondent No.1, who was the driver-cum-owner of the
offending vehicle, filed his written statements before the learned

Tribunal wherein, he stated that he had already been discharged from
the present case by the learned Tribunal due to lack of evidence and
no accident was caused by him and he had been falsely implicated in
the present case. Per Contra, the respondent No.3/National Insurance
Co. Ltd. acknowledged that the offending vehicle was insured with the
company vide policy No. 462000/31/04/6200012567, which was valid
from 07.01.2005 to 06.01.2006, covering the date of the accident and
the policy was in the name of Piyush Gupta/respondent No.1 but
denied that any accident was caused involving the insured motorcycle.
5. Based on the pleadings, the learned Tribunal framed the
following issues:

(1) Whether on 29.06.2005 at about 10:00 pm at bus stop
Azadpur, Delhi, vehicle no. UP-27F-7426 which was being driven
rashly and negligently hit the deceased and caused his death? OPP
(2). Whether petitioners are entitled to compensation, if so, to what
amount and from whom ?OPP
(3). Relief.
PROCEEDINGS BEFORE THE TRIBUNAL AND IMPUGNED
AWARD:

6. During the course of the proceedings before the learned
Tribunal, the petitioner/Hema Devi was examined as PW1 and
deposed about all the relevant documents including the original death
certificate (Ex.PW1/2), Election card (Ex.PW1/3), copy of the FIR
and other documents. Further, she stated that the deceased was indeed
hit by the offending vehicle driven by respondent No.1. It is pertinent
to mention here that she was cross examined by the counsel for
respondent No.2/Insurance Company wherein, she admitted that she
was not an eyewitness to the said incident.

7. It is pertinent to mention here that the learned Tribunal
regarding Issue No.1, observed during the proceedings that the
petitioner/PW-1 was examined on 04.06.2013 and the corresponding
order sheet would show that none was present for the respondent
No.1/Piyush Gupta/driver-cum-owner on that date to cross examine
the petitioner. Thus, the learned Tribunal held that the cross-
examination of PW-1 by the respondent would be deemed to be nil”
considering the fact that an opportunity was given to them and
thereby, the testimony of PW-1 that the deceased was hit by the
offending vehicle driven by him in a rash and negligent manner,
remaining unrebutted and uncontroverted. The learned Tribunal also
observed that in the corresponding CC No. 1801/01 dated 15.05.2008,
the matter was disposed of as untraced” by the learned Metropolitan
Magistrate (M.M.), with liberty to the investigating agency to get it
revived in case any evidence is found at a later stage.
8. Further, the certified copy of the aforementioned order would
reveal that one Mohd. Rafique Ansari had made a written complaint
dated 10.12.2007 to the Police Chowki, THC Delhi, wherein he had
specifically stated that he had seen the accused driving the offending
vehicle but was threatened while he was called to identify the accused
upon a notice under Section 160 Code of Criminal Procedure, 1973. It
would be expedient to reproduce the relevant observations:

Petitioner/PW1 was examined on 04.06.2013 and the
corresponding order sheet dated 04.06.2013 would show that none
for R1 was present on that date to cross examine her. In the said
circumstances, the cross-examination of PWI by R1 would be
deemed to be nil, opportunity given. R1 in the said circumstances,
shall be deemed to admit the above said testimony of PW1 to the

effect that on 29.06.2005 at about 10:00 pm, the offending vehicle
which was being driven at a high speed and in a rash and negligent
manner caused the case accident by hitting the deceased while he
was standing at the bus stop at Azadpur Flyover, Delhi and caused
him grievous injuries due to which he subsequently expired on
06.07.2005.
The record would show that in the corresponding CC No. 1801/01
titled as Hema Devi vs Piyush.Gupta & Ors., vide order dated
15.05.2008 the matter was disposed of as untraced” by ld. MM
with liberty to investigating agency to get it waived in case any
evidence is found at any later stage. The certified copy of said
order is on record which would show that one Mohd. Rafique
Ansari had claimed to be an eye witness but failed to identify him
during TIP and he also did not mention the circumstances under
which the accident occurred. The record would however, show that
the said Mohd Rafique Ansari has made a written complaint dated
10.12.2007 to Chowki Incharge, Police Post, THC Delhi, wherein
he has specifically stated that he had seen the accused driving the
offending motorcycle no. UP-27AF-7426 at the relevant time but
he was threatened while he was called to identify the accused upon
notice u/s 160 Cr. PC.

9. The learned Tribunal considered the testimony of Mohd.
Rafique Ansari/PW2 as he had specifically mentioned the registration
number of the offending vehicle stating that he had recorded the
number. Thus, holding that the driver/Piyush Gupta was negligent in
his act and that the said accident took place at the above said date,
time and place, the issue No.1 was decided in favour of the
petitioner/Hema Devi and against the respondents.
10. The learned Tribunal considered the age of the deceased as 41
years although the petitioner wife/Hema Devi deposed that her
husband was 45 years of age. Further, the petitioner deposed that her
husband was a transporter and was earning Rs.15,000/- per month.

However, there was produced no evidence on record so as to prove the
said fact. Further no evidence was led with respect to the educational
qualifications of the deceased. Thus, the learned Tribunal assessed the
income of the deceased at Rs.3,044/- per month as per the Minimum
Wages in Delhi NCR. The germane observations have been
reproduced below:

PW1 deposed that her husband was a transporter and was earning
Rs.15,000/- per month, however, during cross examination as
conducted on behalf of insurance co. she has clearly admitted that
she did not have any books of account to show that her husband
was a transporter and earned Rs. 15,000/- per month. Further,
petitioners have also not proved any document regarding the
education of the deceased although she deposed that her husband
was 10th class pass. In the said circumstances, it would seem that
the petitioners have failed to prove the monthly income and
educational qualifications of the deceased.

11. Reliance was placed on National Insurance Co. Ltd. v.
Pranay Sethi8 by the learned Tribunal for computation of the income
of the deceased. Considering the age of 41 years, an addition of 25%
to the established income i.e., Rs. 3,044 was made. Thus, the income
was calculated at Rs.3,805/-. Further, as there were five dependents of
the deceased, the learned Tribunal placed reliance on Sarla Verma v.
DTC9, and accordingly, 1/4th deduction towards personal and living
expenses was considered.
12. To sum up, the learned Tribunal concluded its findings by
holding that the insurance company/respondent No.2 had no legal
defence and since the offending vehicle was insured with them, the
onus to pay the compensation to the claimants/petitioners lies upon

8 (2017) 16 SCC 680
9 (2009) 6 SCC 121

them. Accordingly, the claimants were made entitled to receive a sum
of Rs.5,49,500/- as compensation along with interest @ 9% from the
date of filing the petition till its realization.

GROUNDS FOR APPEAL:

13. In the instant appeal filed under Section 173 of the MV Act, the
impugned judgment dated 25.04.2018 has been assailed inter alia on
the grounds that the learned Tribunal failed to appreciate that the FIR
was lodged against an unknown vehicle and there was no eyewitness
to the accident. As the vehicle could not be traced and Mohd. Rafique
Ansari/PW-2 also failed to identify the date of the accident, the
insurance company cannot be held liable. An objection has been raised
further by the appellant in the present appeal alluding to the aspect
that Mohd. Rafique Ansari/PW-2 did not appear before the learned
Tribunal as a witness and the learned Tribunal relied upon his
statements, which were recorded before the learned Metropolitan
Magistrate. Mere disclosure of the registration number by PW-2 does
not prove the involvement of the vehicle in the accident.

ANALYSIS & DECISION:

14. Having heard the learned counsels for the parties and on perusal
of the record including the digitized Trial Court Record, the plea
canvassed by the learned counsel for the appellant/insurance company
challenging the factum of the accident, cannot be sustained in law.
Indeed, PW-1 was not an eyewitness to the accident, however, there is
no gainsaying that the deceased was under medical treatment and
remained hospitalised till 06.07.2005 and it is, but natural that he

disclosed all the facts concerning the accident to his wife (PW-1). The
testimony of PW-1 in the affidavit filed in evidence as to the manner
in which the accident occurred and the way her husband was removed
from the place of occurrence and later on thrown at some place by the
driver of the offending vehicle, are circumstances leading to the death
of the deceased, which become relevant under Section 32(1)10 of the
Indian Evidence Act, 1872. Further, it is borne out from the record
that an FIR bearing No. 439/2005 under Section 279/337/304-A of the
IPC was lodged soon after the death of the deceased and the
possibility that PW-1 would falsely implicate any vehicle in the
accident belies common sense and logic. There was no apparent
motive in the mind of PW-1 so as to falsely implicate the driver of the
offending vehicle. Learned Tribunal rightly concluded that the version
of the claimant/wife with regard to the incident was not challenged in
the cross-examination by the driver of the offending vehicle and a
half-hearted attempt was made by the appellant/insurance company to
put some suggestions here and there, which served no purpose.
15. Secondly, although the eyewitness Mohd. Rafique Ansari failed
to identify the offender motorcyclist; however, his statement was
categorical to the effect that the accident had been caused by a
motorcycle bearing registration No. UP-27AF-7426. The witness also
went on to state to the police that he was threatened by the accused

10 32(1) when it relates to cause of death.- When the statement is made by a person as to the
cause of his death, or as to any of the circumstances of the transaction which resulted in his death,
in cases in which the cause of that person”s death comes into question.
Such statements are relevant whether the person who made them was or was not, at the
time when they were made, under expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question.

persons not to identify them during the Test Identification Parade or
else, there would be harm to his life. There was no apparent reason
for an independent person like Mohd. Rafique Ansari to come forward
and depose falsely so as to implicate the offending vehicle in the
accident. Therefore, it does not lie in the mouth of the
appellant/insurance company to dispute the factum of the accident,
resulting in the death of the deceased, having been caused by the
offending motorcycle insured with them.
16. As regards the quantum of compensation, the learned Tribunal
found that PW-1 had failed to substantiate that her husband was
working as a transporter and earning Rs. 15,000/- per month and
therefore, the learned Tribunal had proceeded to reckon the minimum
wages for a skilled person as the notional income in Delhi @ Rs.
3044/- per month. It is evident from the record that the deceased was
having a wife and four minor children. Although no evidence was led
so as to substantiate the income of the deceased, it would be fair to
assume that he was maintaining a large family and he would have
been earning at least Rs. 10,000/- per month at the age of 41 years.
The scales of the minimum wages have no rational connection with
the age of the worker concerned and same is only taken as an indicator
so as to assume the notional income, but there can be no hard-and-fast
rule that such scales of minimum wages would be applicable to every
workman irrespective of his/her age. It is but common sense that with
age and experience, even a workman starts getting more than what is
prescribed as the minimum wages” by the law.

17. In view of the aforesaid facts, the annual income of the
deceased is assessed @ Rs. 1,20,000/-. Accordingly, an addition of
25% to the actual salary/income shall be made towards loss of future
prospects in terms of the decision in Pranay Sethi (supra), which
brings the income to Rs. 1,50,000/-. Further, after deducting 1/4th
towards personal and living expenses, the figure comes to Rs.
1,12,500/-. Considering the age of the deceased, which was 41 years at
the time of the accident, the multiplier of 14″ has been adopted after
taking into account the decision in Sarla Verma (supra). Thus, the
total financial loss of dependency comes to Rs. 15,75,000/- (Rupees
Fifteen Lacs Seventy Five Thousand only). We further add Rs.
40,000/- to each of the five dependents towards loss of love and
affection and loss of consortium, which comes to Rs. 2,00,000/-.
Further, considering the decision in Pranay Sethi (supra), Rs.
15,000/- each is awarded towards the loss of estate and funeral
expenses. Accordingly, the total compensation is arrived at Rs.
18,05,000/- (Eighteen Lacs Five Thousand Only) which is shown as
under:

S. No.

Head

Compensation
Awarded

Income

Rs.1,20,000/- per annum
(10,000 x 12)

Addition towards Future Prospects

Rs.30,000/- (i.e. 25%
addition to the income;
1,50,000/-)

1/4th Deduction towards personal and
living expenses

Rs.1,12,500/-
(1,50,000 37,500)

Multiplier

Total Loss of dependency

Rs.15,75,000/-
(1,12,500 x 14)

Funeral expenses

Rs.15,000/-

Loss of Estate

Rs.15,000/-

Loss of love and affection and loss of
consortium.

Rs.2,00,000/-

Total

Rs.18,05,000/-

18. In view of the foregoing discussion, I find no merit in the
present appeal filed by the appellant/insurance company. The same is
accordingly dismissed.
19. The pending applications also stand disposed of.
20. However, this Court, suo moto, for the aforesaid reasons,
decides to enhance the compensation in view of the decisions in
Vimla Devi v. National Insurance Company Limited11 and
Ningamma v. United India Insurance Company Limited12, which
comes to Rs. 18,05,000/-, which shall be payable @ 9% interest from
the date of filing of the petition till realization.

11 (2019) 2 SCC 186
12 (2009) 13 SCC 710

DHARMESH SHARMA, J.
MARCH 01, 2024
Sadiq