The Oriental Insurance Co. Ltd. vs Bhagwat Singh and Others

Jayant Nath, J.—The present appeals are filed by the appellant impugning the common award dated 26.07.2014. MAC. App. 1039/2014 is filed pertaining to the death of Sh. Vishnu @ Bishwender. MAC. App. 1044/2014 is filed relating to the death of Sh. Bijender Kumar.

The brief facts as narrated which led to the filing of the present appeals are that on 14.07.2012, the deceased Sh. Vishnu was going to Agwanpur, Faridabad from Chirag Delhi after loading malwa in the vehicle in which he was working as a helper. When the said vehicle reached Maa Anand Mal Marg near Crown Plaza Hotel at midnight, suddenly the offending vehicle i.e. truck trolla driven by Respondent No. 3 at a very high speed and in a rash and negligent manner hit the vehicle in which Sh. Vishnu was travelling. The offending vehicle then hit the bicycle on which Sh. Bijender Kumar was travelling.

The injured were taken to AIIMS Trauma Centre, New Delhi. Both the deceased persons died during treatment.

Based on the evidence on record the Tribunal noted that the accident took place due to rash and negligent driving of Respondent No. 3.

On compensation, in MAC. App. 1039/2014 pertaining to deceased Vishnu, the Tribunal awarded the following compensation:

The Tribunal based on the evidence on record took the salary of the deceased based on the minimum wages for a matriculate as Rs. 8,528/- at the time of the accident. 50% was added to the income of the deceased as he was aged less than 40 years. Further, 1/2 was deducted towards personal and living expenses as the deceased was unmarried. Applying the multiplier of 13 based on the age of the mother of the deceased the loss of dependency was calculated as Rs. 9,97,776/-.

In MAC. App. 1044/2014, (relating to deceased Bijender Kumar) the Tribunal awarded the following compensation:

In the case of the deceased Sh. Bijender Kumar, the Tribunal assessed the income of the deceased based on minimum wages of an unskilled worker on the date of the accident as Rs. 7,748/-. An amount of 50% was added to the income for future prospects as the deceased was less than 40 years old. 1/2 was deducted towards personal expenses as the deceased was a bachelor. Applying the multiplier of 9 based on the age of the mother of the deceased the loss of dependency was calculated as Rs. 6,27,588/-.

Learned counsel appearing for the appellant has impugned the award in both the appeals on common grounds being firstly, that the Tribunal has erred in adding future prospects to the income of both the deceased to calculate loss of dependency as their income was not fixed/stable. Secondly, he contends that the Tribunal has wrongly held that the accident occurred due to the rash and negligent driving of the offending vehicle, whereas, this is a case of contributory negligence.

On the issue of future prospects, I can take judicial note of the fact that minimum wages for an unskilled worker in 2002 were Rs. 2667.4 P.M. and in 2012 were Rs. 7020/- P.M. It is obvious that the prescribed minimum wages have more than doubled in ten years.

In case of Anya v. University of Oxford, 2001 EWCA Civ 405 (CA) , the Supreme Court held that in the case of self employed or those on fixed wages, when the victim is below 40 years an addition of 50% should be made in the wages for the purpose of computing loss of future earnings.

In the case of Anya v. University of Oxford, 2001 EWCA Civ 405 (CA) , the Supreme Court was of the view that in the case of self employed or those engaged on fixed wages, 30% increase in income over period of time would be appropriate. In the case of Anya v. University of Oxford, 2001 EWCA Civ 405 (CA) , the Supreme Court in the case of injury to a student who was studying in Class XI aged 16 years had awarded 50% increase for future prospects.

Further, this court in the case of ICICI Lombard General Insurance Company v. Angrej Singh & Ors. in MAC APP. 846/2011 in judgment dated 30.09.2013 had gone into this issue and had noted the judgments of the Supreme Court in the case of Anya v. University of Oxford, 2001 EWCA Civ 405 (CA) , Anya v. University of Oxford, 2001 EWCA Civ 405 (CA) and other judgments and concluded that the Supreme Court in the case of Rajesh & Ors. v. Rajbir Singh & Ors., (supra) has held that the future prospects should be given to persons who are self-employed or on fixed wages. This court further held that there is no conflict in the legal position as set out in the judgments of Reshma Kumari & Ors. v. Madan Mohan & Anr(supra) and Rajesh & Ors. v. Rajbir Singh & Ors. (supra).

I may further note that this court in MAC APP.761/2012 Rakesh and Ors. v. National Insurance Co. Ltd. and Ors. vide judgment dated 02.04.2014 had in a case where the deceased was 24 years old added 50% to the income towards future prospects for computing loss of dependency based on the judgment of the Supreme Court in the case of Rajesh & Ors. v. Rajbir Singh & Ors.(supra). Against the said judgment the appellant had filed an SLP before the Supreme Court. The said SLP No. 5612/2014 was dismissed by the Supreme Court on 10.10.2014.

In view of the above, there are no reasons to differ with the reasoning of the award granting 50% increase on account of future prospects.

Coming to the issue of contributory negligence argued by the appellant, the Tribunal took into consideration the evidence of P.W. 1 and P.W. 2, according to which the accident was caused due to the rash and negligent driving of the driver of the offending vehicle which came at a very fast speed without following any traffic rules. The copies of FIR, Site plan, arrest memo, seizure memo, mechanical inspection report were placed on record before the Tribunal. The Tribunal further noted that the driver of the offending vehicle has not cared to enter into the witness box and explain his version regarding the accident. Relying on the evidence on record and the record of the criminal proceedings, the Tribunal held that the accident was caused due to rash and negligent driving of the offending vehicle.

This court in the case of Anya v. University of Oxford, 2001 EWCA Civ 405 (CA) held that where a driver does not enter the witness box, an adverse inference can be drawn against him.

Further this court in the case of Anya v. University of Oxford, 2001 EWCA Civ 405 (CA) held that where a chargesheet is filed against the driver, a tribunal can relying upon the charge sheet, FIR and other accompanying documents reach to a conclusion about the rash and negligent driving of the offending vehicle.

In the light of the evidence placed on record and the judgments mentioned above, I see no reason to differ with the said finding of the Tribunal.

The present appeal stands dismissed.

In case any statutory amount was deposited by the appellant at the time of filing of the appeal, the same may be refunded to the appellant.