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2019 DIGILAW 1234 (PNJ)

Oriental Insurance Company Limited v. Ravjit Kaur

2019-04-22

RAJ MOHAN SINGH

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JUDGMENT : RAJ MOHAN SINGH, J. 1. Appellant-Insurance Company has preferred this appeal against the Award dated 01.10.2015 passed by the Motor Accident Claims Tribunal, Chandigarh (hereinafter to be referred as ‘the Tribunal’) vide which an amout of Rs.9,55,000/- as compensation was awarded in favour of the respondents No.1 to 4/claimants along with interest @ 7.5% per annum from the date of filing of the claim petition till actual realization of the same. The amount of compensation was ordered to be apportioned in the manner as suggested by the Tribunal in para nos.24 and 25 of the impugned award. 2. The accident in question took place on 29.11.2013, when deceased Jasbir Singh was going from Industrial Area, Phase-II, Chandigarh to Sector 47, Chandigarh on his scooter at a moderate speed on his correct left hand side. He was followed by his brother Gurmeet Singh in a car. At about 11:20 a.m., when they reached near Community Centre, Sector 47, Chandigarh, the offending car came from the opposite direction in a rash and negligent manner and struck against the scooter of the deceased by coming on the wrong side of the road. Due to the impact, deceased Jasbir Singh fell down on the road and sustained serious injuries. He was hospitalized in GMCH, Sector 32, Chandigarh, where he remained under medical treatment. He was discharged on 10.12.2013 and ultimately succumbed to his injuries on 18.12.2013. The claimants being widow, daughter and parents sought compensation on account of death of Jasbir Singh in a vehicular accident. 3. Fir was registered against the driver of the offending vehicle. Driver and owner of the vehicle admitted the occurrence, however the negligence was attributed to the deceased. Joginder Singh Banipal (driver of the offending vehicle) got the deceased admitted in the hospital. 4. The claim petition was contested by the appellant/Insurance Company on numerous defences as provided under Sections 147, 149 and 170 of the Motor Vehicles Act. 5. After appreciating the material on record, the Tribunal decided the issue No.1 holding that the accident in question took place due to rash and negligent driving of the offending vehicle. Under issue No.2, it was decided that the claimants are entitled for compensation as deceased Jasbir Singh died on account of injuries sustained in the accident. 6. 5. After appreciating the material on record, the Tribunal decided the issue No.1 holding that the accident in question took place due to rash and negligent driving of the offending vehicle. Under issue No.2, it was decided that the claimants are entitled for compensation as deceased Jasbir Singh died on account of injuries sustained in the accident. 6. On 29.11.2013 itself intimation was received in the Police Station and thereafter talks were on between the parties to strike a compromise. In view of aforesaid development coupled with statement of SI Sukhdev Singh (PW-4) the delay in lodging the FIR was considered to be satisfactorily explained. 7. Monthly income of the deceased was considered to be Rs.7300/- per month for want of any documentary evidence on record. PW-2 Neeraj Sharma Accounts Executive O/o Atop Fastners Pvt. Ltd., proved on record the certificate issued by the aforesaid Company to show that deceased was serving in the Company and as per Ex.P-9, the salary was shown to be Rs.7258/- in the month of October 2013 i.e. just before his death. The witness also produced wages register of the employees pertaining to the month of October 2013 (Ex.P-13), wherein last salary paid to the deceased was Rs.7258/-. The Tribunal took monthly income of the deceased to be Rs.7300/- and after applying increase of 15% in view of law laid down in Rajesh & others vs. Rajbir Singh & others, (2013) 3 RCR(Civ) 170 considered gross income of the deceased to be Rs.8395/- per month i.e. Rs.1,00,740/- per annum. 8. Taking into consideration the composition of the family of the deceased i.e. widow and old parents and by not treating married daughters to be dependent, the Tribunal applied 1/4th deduction to the tune of Rs.25,185/- thereby calculating annual dependency to the tune of Rs.75,555/-. In view of age of the deceased, multiplier of 9 was applied. The compensation on account of dependency was assessed to be Rs.6,80,000/- to which conventional heads of Rs.2,25,000/- and Rs.50,000/- towards funeral expenses, loss of consortium, loss of love and affection to parties and loss of care and guidance for married daughter were added. In this way, total compensation was assessed to be Rs.9,55,000/-. 9. I have considered the submissions made by learned counsel for the parties. 10. Since the appeal is being decided now and the parameters as laid down in view of National Insurance Co. In this way, total compensation was assessed to be Rs.9,55,000/-. 9. I have considered the submissions made by learned counsel for the parties. 10. Since the appeal is being decided now and the parameters as laid down in view of National Insurance Co. Limited vs. Pranay Sethi, 2017 SCC 1270 and Magma General Insurance Co. Ltd. vs. Nanu Ram Alias Chuhru Ram & Ors., (2018) 4 RCR(Civ) 333 are to be applied, then the compensation may go beyond the award made by the Tribunal. Since no appeal has been preferred by the claimants, therefore, I deem it appropriate not to consider the case for any escalation in the amount of compensation, but it is also a well settled proposition that claimants should be awarded just compensation though some hypothetical consideration and guess work can be applied while working out the due and just compensation in favour of the claimants. 11. The primary contention of learned counsel for the appellant was that the accident in question took place on 29.11.2013 and the FIR came to be lodged only on 22.01.2014 despite the fact that brother of the then injured Jasbir Singh was following scooter of the injured. Jasbir Singh was discharged from the hospital on 10.12.2013 i.e. after 11 days. Thereafter on 18.12.2013, he succumbed to his injuries. A delay of more than one month in lodging the FIR was pleaded to be an incriminating fact for dislodging the claim of the claimants. 12. Vide order dated 01.11.2017 passed by the Co-ordinate Bench of this Court, the appellant was directed to place on record the Investigator’s report submitted to the appellant-Insurance Company. In view of facts and circumstances of the case, Mr. J.S. Toor, Standing counsel for the U.T. Chandigarh was requested to show the Court the police papers involving the accident in question. 13. Today, learned Standing counsel for UT Chandigarh has placed on record a copy of DDR dated 29.11.2013 recorded in respect of the accident in question, wherein it was recorded that due intimation was sent to the police station to the effect that the offending vehicle after committing the accident had ran away and police officials were sent to the spot. After recording the DDR, SI Sukhdev Singh along with Constable Malip No.4723/CP was sent. 14. SI Sukhdev Singh has been examined in the present case as PW-4, who has corroborated the aforesaid stand. After recording the DDR, SI Sukhdev Singh along with Constable Malip No.4723/CP was sent. 14. SI Sukhdev Singh has been examined in the present case as PW-4, who has corroborated the aforesaid stand. The delay in loding the FIR took place on account of intending effort between the parties to strike a compromise. The claimants have examined Dr. Arvind Malhotra, Associate Professor in GMCH Sector 32, Chandigarh as PW-6 besides examining the Record Keeper of the Hospital as PW-7. According to the statement of Dr. Arvind Malhotra (PW-6) the physical condition of the then injured i.e. deceased Jasbir Singh was not improving and he was discharged in that very state, where his chances of survival were negligible. 15. The claim petitions are to be decided on the basis of probability where no strict procedure of evidence can be enforced. Fate of criminal case is not relevant in assessing just compensation based on welfare legislation. Delay in lodging the FIR has been satisfactorily explained on record. Even in case of Ravi vs. Badrinarayan & Ors.,2011 STPL(Web) 149 SC, the Hon’ble Apex Court held that in view of facts and circumstances of the case delay alone is not fatal. In a motor accident claim case, delay in lodging FIR cannot be held to be fatal in awarding just compensation, particularly when in the instant case, DDR was recorded on 29.11.2013 itself and SI Sukhdev Singh has been examined as PW-4, who in his statement has corroborated the stand of the claimants. 16. The Tribunal while assessing the dependency has taken into consideration the widow and old parents for the purposes of applying 1/4th deduction. Since this appeal is being decided after the decision of Magma General Insurance Co. Ltd.’s case (supra) by the Hon’ble Apex Court, therefore, this Court can consider award of just compensation in favour of the claimants, but since there is no appeal preferred by the claimants, therefore, I deem it appropriate to maintain the award passed by the Tribunal. 17. For the reasons recorded hereinabove, this appeal is found to be totally devoid of merits and the same is dismissed as such.