NEELAM PRASHAR Vs. MINTOO THAKUR

JUDGEMENT

(1.) By these two Cross Appeals, the parties impugn the judgment dated 19.01.2010 whereby a compensation of Rs. 1,03,68,744/- was awarded for the death of Atul Prashar aged 37 years, who died in a motor accident, which took place on 18.01.2008. The MAC. APP. No.179/2010 has been filed by the legal representatives of the deceased i.e. Neelam Prashar and others (hereinafter referred to as the "Claimants") whereas MAC. APP. No.313/2010 has been preferred by the National Insurance Co. Ltd. (hereinafter referred to as "insurer") disputing the negligence on the part of the driver of Maruti Esteem bearing Registration No.DL-2CAC-5813 and for reduction of the amount of compensation awarded by the Motor Accident Claims Tribunal (the Tribunal).

(2.) It is urged by the learned counsel for the Insurer that in order to prove negligence the Claimants examined PW-2 Dushyant Vasudev and PW-4 Ashish Aggarwal. The accident took place at about 6:30 AM. Both PW-2 & PW-4 were working in separate offices (though in the same vicinity) & their offices would start at 9/ 9:30 AM. Thus, their presence at the time of the accident was highly improbable. If the testimony of these two witnesses is taken off the record there is nothing to establish the negligence on the part of the driver of Maruti Esteem Car No.DL-2CAC-5813. It is well settled that in a claim petition negligence is required to be proved only on the test of preponderance of probabilities. The FIR in this case was registered on the basis of the statement of PW-2. The offending vehicle was seized from the spot. The driver of the Esteem Car No.DL-2CAC-5813 was not produced by the Insurer to rebut the testimony of PW-2 and PW-4. PW-2 gave an explanation that he was called early in the office because some guests were scheduled to come. In the absence of examination of the driver to rebut PW-2 and PW-4?s testimonies their presence at the spot at the time of accident cannot be doubted merely on the assumption that they could not have proceeded for the office early and that too in the same vehicle. In my view, on the test of preponderance of probabilities, PW-2 and PW-4?s testimonies that, the accident was caused on account of rash and negligent driving by the driver of Car No.DL-2CAC-5813 has to be accepted. I hold that the finding of fact reached by the Tribunal on this count cannot be faulted.

(3.) For the purpose of loss of dependency the Tribunal took the deceased's income to be Rs. 78,477/- after deducting the conveyance allowance of Rs. 800/- per month and medical pay of Rs. 1,250/- per month. It is urged by the learned counsel for the Claimants that the medical pay was for the benefit of the deceased and his family members and should have been taken into consideration as part of the salary. It is submitted that the multiplier of 13? selected by the Tribunal as against 15? suggested in Sarla Verma v. DTC, 2009 6 SCC 121 is on the lower side. The compensation towards loss of love and affection of Rs. 10,000/- is also very low and needs enhancement.