National Insurance Co v. Pinki Devi & Ors

V.B.GUPTA, J. Bisht

* HIGH COURT OF DELHI : NEW DELHI MAC APPEAL No.719/2006 % Judgment reserved on: 6th May, 2008 Judgment delivered on: 13th May, 2008 National Insurance Company R.O.No.2, 2E/9, Jhandewalan Extn. New Delhi-55. …Appellant Through:Mr.S.L.Gupta, Adv. Versus 1.Smt.Pinki Devi, W/o Late Tarkeshwar 2.Master Tanmaya Kumar, S/o Late Tarkeshwar (Through his mother and natural guardian Respondent No.1) 3. Smt.Shanta Devi W/o Late Rajender Singh, All Respondent Nos. 1 to 3 are resident of H.No.17, Village & P.O., Kolbara, P.S. Saraiya Distt. Muzaffarpur, Bihar and also at Present C-92, Amar Jyoti Colony, Shahbad, Delhi. 4.Sh.Sarabjit Singh, S/o Sh.Ram Singh, R/o 6/122, Samrala,Ludhiyana, Punjab and also at 1 No. 122, Ward No.6, Mohalla Himmat Nagar, P.S. & Tehsil Samarla, Distt. Ludhiyana, Punjab (Driver) 5. Sh.Manpreet Singh, S/o Sh.Joginder Singh, Village and P.O.Muskabad, The Samrala, Ludhiana, Punjab and also at C/o Malwa Sweets, Main Chowk, P.S. and Tehsil Samrala, Distt. Ludhiyana, Punjab (Owner) …Respondents Through: Nemo. Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. National Insurance Company has filed this appeal under Section 173 of Motor Vehicles Act, 1988 (for short as "Act") seeking reduction of the amount of the award passed by Sh.A.K.Chawla, Judge MACT (for short as "Tribunal"), Delhi. 2. The brief facts of the case are that on 26th March, 2004 at about 11.p.m. deceased Tarkeshwar was going to his house on scooter No.DDJ-953 and when he reached Prem Bari Pul, Red light, Ring Road, a Qualis Car No.PB- 01-4338 which was being driven by its driver who is respondent no.4 herein, at a high speed, rashly and negligently came from behind and violently hit the scooter of the deceased. As a result thereof deceased sustained fatal injuries and died on 2nd April, 2004. Deceased was aged about 22 years and a hoarding designer and painter, earning Rs.5,000/- per month. Respondent No.5, herein is the owner of offending vehicle whereas the appellant is the insurer. 3. The learned Tribunal vide impugned judgment dated 1st July, 2006 passed an award in the sum of Rs.6,55,000/- in favour of the claimants who are respondents 1 to 3 in the present appeal. In addition, the learned Tribunal awarded interest @ 8% per annum from the date of filing of the petition till realization. 4. Being dissatisfied with the award passed by the Tribunal, Insurance Company has filed present appeal and has sought reduction of the amount of the award passed by the Tribunal. 5. Notice of this appeal was issued to respondents 1 to 3 only, who are the claimants in this case. However, none appeared on behalf of the claimants. 6. The trial court record has been summoned in this case and I have heard the learned counsel for the appellant. 7. It has been contended by the learned counsel for the appellant that vide order dated 1st June, 2005 of the Tribunal, the Insurance Company has been granted permission under Section 170 of the Act to contest the case on quantum as well as on negligence. 8. It is further contended that the accident in the present case has occurred due to negligence of the deceased who was driving his scooter rashly and negligently and in the alternative it is a case of contributory negligence, since the driver of offending car has appeared in the witness box and has stated that the scooterist got injuries on account of hitting the divider and not his car. 9. The other contention is that in the present case, there is no proof of future prospects of the deceased but even then the Tribunal has taken into consideration the future prospects and has doubled the income of deceased. Further, the multiplier applied is also on the higher side. In support of his contention, learned counsel for appellant has relied upon a decision of the Apex Court in Bijoy Kumar Dugar v. Bidy