Mrs. Sushma Rani & Ors. v. Sh. Satbir Singh & Ors.

Present: Ms.Ekta Thakur, Advocate for the appellants. Mr. Ravinder Arora, Advocate for the insurance company.

2. FAO No.570 of 1999 M/s United India Insurance Company Limited, Sector 17 Chandigarh having its Regional Office, Sector 8-C, Chandigarh through its constituted attorney and another ......Appellants Versus Mrs. Sushma Rani widow of Sh. Ashok Kumar and others .....Respondents Present: Mr. Ravinder Arora, Advocate for the appellants. Ms. Ekta Thakur, Advocate for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? K. KANNAN J.(ORAL) -.-

1. The insurance company is challenging the issue of FAO No.307 of 1999 -2- negligence contending that apportionment of liability as 80:20 was not properly done. The learned counsel for the insurance company would state that the deceased himself even while he was still at the hospital gave a statement that there was no negligence on the part of the car driver and that he himself was responsible. This was said to have been entered in DDR as well.

2. The Tribunal, however, considered the issue of negligence with reference to evidence, which was placed before it and found the liability between the car driver and the scooterist as 80:20. A statement before the police recorded in DDR cannot constitute a final aspect of admission relating to negligence. It is a case where the person has made statement in death bed and I would not test the correctness of such statement as final and binding when the issue was very much at large before the Tribunal. The apportionment of liability under such circumstance in a different fashion by the Tribunal is perfectly justified.

3. Even otherwise, there is no scope for urging the issue of negligence before a Tribunal in appeal filed by the insurer. The appeal is not maintainable. The award is confirmed and the appeal filed by the insurance company in FAO No.570 of 1999 is dismissed.

4. The claimants themselves have preferred the connected appeal seeking for enhancement and also contending that the apportionment of liability was wrongly made. In this case, before the Tribunal, a witness had been examined, who spoke about the fact that he was going a short distance behind the scooterist when he saw the accident. According to him, the deceased was driving a FAO No.307 of 1999 -3- scooter at the side of the road and the car was coming at a fast speed and hit the scooter. In the cross-examination, it was sought to be elicited that the witness himself could not have witnessed the incident for he had admitted that he was not examined by the police and the accident had not taken place in the manner alleged by him. It was also suggested to the witness that the scooterist had actually struck a cyclist and then the accident had taken place. The learned counsel would contend that even the driver of the car had not been examined and would contend that in the absence of any evidence on the side of the insured's vehicle, the evidence of this witness cited by the claimant ought to have been accepted in toto.

5. The Tribunal was literally considering a situation when there was a statement by the deceased owning up the responsibility. I have already observed above that it shall not conclude the matter and that the case would require to be considered before the Tribunal when the issue of negligence arose for a fuller adjudication. The Tribunal had reasoned that it was a case of collision of two vehicles coming from opposite directions and the accident could not have taken place if the scooterist himself had been more cautious. The evidence of the witness brought by the claimant was too sketchy to take the entire evidence on its face value. I am not impressed by the argument that by the only fact that the driver of the car was not examined, the entire blame must be put to him. Even a rough sketch of the site of the accident was not before the Tribunal, since the police had closed the case on a mere statement of the scooterist. The Criminal Court record showing that the scooterist FAO No.307 of 1999 -4- was at fault, the oral evidence showing no more than that there was an accident where the scooterist had suffered the fatal injuries. If the Tribunal had considered the apportionment of liability as 80:20, I do not want to disturb the same in the absence of new material placed before me to take a different view.

6. Learned counsel appearing on behalf of the claimants would contend that the deceased was a Police Constable, who was earning Rs.3830/- and the compensation had been worked on the income disclosed without making any provision for future increase in salary. This aspect was considered recently by the Hon'ble Supreme Court in Sarla Verma Vs. Delhi Transport Corporation 2009(6) SCC 121, which has ruled that in the case of death of a person, who had a fixed tenure of service, increase should be taken upto 50% for a person who was aged less than 40 years. So reckoned, the average monthly salary must have been taken as Rs.5745/-. If the 1/3rd were to be deducted and 2/3rd of the salary must be taken as contribution to the family and the multiplier of 17 were to be reckoned, the payable amount of compensation would be Rs.7,81,320/-. I have already upheld the finding of the Tribunal with reference to the contributory negligence and therefore, the claim will have to abate by 20%, which would result in a compensation claimable at Rs.6,25,056/-. If the conventional heads of claim for loss of consortium, loss to estate and funeral expenses are also be taken at an additional sum of Rs.15,000/-, the amount will add to Rs.6,40,056/-, which I will round off to Rs.6,40,000/-. The additional amount over what has already been awarded shall bear FAO No.307 of 1999 -5- interest @6% from the date of accident till the date of payment. The cross appeal is allowed to the above extent. August 23, 2010 Pankaj* (K. KANNAN) JUDGE