Tata Aig General Insurance Company Ltd v. Vinod Kumar Ashthana And ORS
!! ! "
#
$!% ! "
& '!"!$ ! "
!
"# $ $ $ $ # ( ) *
+
(( ,) - .+
/0 $ $
0
2
2. '
. - 0%!4 !05 2.
(
2 + 3 )
0"" 0$!
( +06447 +8 2 9: 3
2. . 4+60+!!!;' 2
- 3. < '
.
!"# !$ "
=
000 !0%+ 7
:- 33-
3
3
- , # .
2
3 3 / '>)'"%>6?
(
@( - + ,- 2 3
2.
33 .
2
7
:
-
- .
# 0!!2 # /
2 3 A + 3 -
82 3
8 % &
+
$ B
3 + -3 -
2.
2 '
"1. Whether the accident took place due to rash and negligent driving of vehicle bearing No. HR BQ 4059 by respondent no.1? OPP
2. If issue no.1 is proved, whether petitioners are entitled to compensation on account of death of Anshuman Asthana in the accident and if so how much and from whom ?OPP.
3. Whether the respondent no.1 was not holding a valid and effective driving licence at the time of accident and has violated the terms and conditions of insurance policy? OPR(3).
4. Relief.
5 ,3
3
+
2 - ;
/ 0 4+60+!!!;' A-
+ '
.- 2 . A
+
"%& ""
## '
( #%"
' #!$ ) !
"
"
3 2 C
.
,
000 !0% B-
%
3
< .+-
+
- 2 +2 D . 3 )-
<
>
2
3 35!E
$!E -A
.
2 - 4 #
/0
.
3 - A
2 3.
33 3
3
A
.
2 6
-
0! =
3 +
- +-
'
"ISSUE NO. 1 Onus to prove this issue was upon the petitioners. The petitioners have examined PW7 Kultaj Kataria who tendered his affidavit Ex.PW7/A stating therein that on 21.11.2013, at about 10.00 p.m., he was going to his home in Baleno car from MGF mall after shopping and when he reached near JMD Tower, MG Road, Gurgaon, he saw that a speeding Maruti Swift Car bearing registration No. HR BQ 4059 coming from IFFCO chowk side driven by respondent no.1 in a rash and negligent manner and hit the motorcycle of the deceased from behind and the deceased fell down on the road. After the accident, the driver of the offending vehicle run away from the spot of accident with the vehicle.
He has further stated that after the accident people gathered at the spot of accident and he had given his mobile number to one of the security guard standing there and told him that if somebody inquired about the accident, he can give his number. On 1.12.2013, he received a call from one Vinod Kumar Asthana and he told him that he is father of the deceased and he got his mobile number from the security guard roaming there.
&
Thereafter, he alongwith Vinod Asthana visited the police station, where police recorded his statement. The petitioners have proved on record the copy of FIR Ex.P15 and Final Report U/s 173 Cr.P.C. Ex.P16.
PW2 Pardeep Kumar Criminal Ahlmad of the court of Ms. Manvika Banswal, JMIC, Gurgaon brought the summoned record of case titled 'State Vs. Jaswant' arising out of FIR No. 426 of 2013 U/ss 279/304 A IPC, PS DLF Phase II, Gurgaon. He has specifically deposed that charges against accused Jaswant (respondent No.1) were framed on 31.3.2014 for offence punishable U/ss 279/304 IPC. He had proved the copies of DL of Jaswant as Ex.P4 and copy of RC of vehicle No. HR BQ 4059 as Ex.P5.
PW5 Constable Krishan has proved copy of FIR Ex.P15 and has stated that the challan was submitted against Jaswant Singh (respondent No.1). Post Mortem Report Ex.P7 proved on record by PW3 Dr. Yudhveer reveals that Anshuman Asthana (deceased) died on 21.11.2013 with alleged history of road traffic accident. The doctor has opined the cause of death as 'shock & hemorrhage' following ante mortem blunt force impact which is said to be consistent with the manner as alleged.
It is contended by learned counsel for the insurance company that PW7 Kultaj is an introduced witness and he did not witness the accident in question. The FIR at the first instance was registered against a dumper and not against the offending car. It has further been contended that it is unnatural that he would give the particulars of his mobile to someone on the road and would himself leave the place of occurrence. It has further been contended that as the car in question was not involved in the accident, the insurance company not liable to pay the compensation. The Insurance company has also submitted a complaint to the Commissioner of Police, copy of which has been marked as Mark R1 on file.
Per contra, learned counsel for the petitioners has contended that at the first instance the FIR was not got registered on the statement of the eye witness. The police had visited the spot on 23.11.2013 and had recorded the statement of Subhash Kumar Yadav
which is available with the challan Ex.P16. He had specifically stated that the accident had occurred with the Swift car bearing No. HR
26. Thereafter Vinod Asthana father of the deceased came to Gurgaon from his native place. He got the mobile number of PW7 Kultaj Kataria and his statement was recorded on 1.12.2013. It has been consistent version that Vinod Asthana and Kultaj had together visited the police station.
This court finds that there is no force in the contention of learned counsel for respondent No.3. Though, the FIR was registered against a dumper but it is true that it was not an eye witness account. On investigation, the police found that it was the offending car only driven by respondent No.1 and owned by respondent No.2 which was involved in the accident. The police had visited the spot and had recorded the statement of Subhash Kumar Yadav on 23.11.2013. It needs to be noted that his statement was recorded before recording the statement of PW7 Kultaj Kataria. Thus, the introduction of PW7 Kultaj as a witness lateron to implicate the offending car does not arise. The complaint Mark R1 is dated 31.12.2014 i.e. after one year of the incident without any proof to the allegations on the said complaint.
The claim petition was already filed on 10.3.2014. It appears that the same has been moved just to strengthen the case of the insurance company at later stage with assistance of legal mind. It is pertinent to note that no evidence has been led by the respondents to deny the accident or that it was not occurred due to rash and negligent driving of respondent No.1. Challans in the criminal cases are filed after thorough investigation. Respondent no.1 did not make any complaint to any authority regarding his false implication by the police. It means that he was satisfied with the investigation. Further, respondents No.1 & 2 did not step into witness box to deny the allegations of rash and negligent driving by respondent no.1.
Thus, adverse inference can be drawn against them for not stepping into the witness box in view of the judgment titled as New India Insurance Co. Ltd. Versus Swaran Kanta, 1997(3) RCR (Civil) 591 (P&H) (DB); United India Insurance Company Versus Sham Lal,2010(2) Law Herald, 1709. Moreover, respondent no.
facing trial in FIR Ex.P15. Thus, it is safe to hold rash and negligent driving of respondent No.1 in view of the judgment in case titled Girdhari Lal vs. Radhey Shyam, 1993(2) PLR 101(P&H). In view of the above, this Tribunal finds that issue no.1 is proved against the respondents and in favour of the petitioners that accident in question was caused by respondent no.1 while driving the offending vehicle in a rash and negligent manner resulting into the death of Anshuman Asthana."
'"
"# #( 00
3 -
2
3-
2 . 2 2
2
0 . 2 C
.3
. B+-
A-
+ B- 3 2 .
'-
.
B+
+
2
2 D .
2 3
0%
3
3 +
)2 F
%00 !0%+-
3 )-
-
.
#?'> * +
2. 3
.
3
- 2 #?'>+- .
'- + 3
+ 3 +
D
. 2 33 3
/0/3 2
'
<
.
'
0$
+ 2 3.
#?'> 2.A92 )
'*+* , -./.0 " 12.+ -
2
2
2 +
.
B+ .- B2
,- 3
2. 2
- 3
3 *
05
. #?'>
- 2
3.
D
3 +
33
+ G .+
.
7( ,'0:+
.
2 D +* 2.
2
.2
2
3+
. 3 +
.
2 0" HD . 3
-
3
- 2< 2
33 3 2
. 2
+ 2 - * -3
3
/%
3
2 3
2. 2 0> 2 2
32
(
2
. 3
2.
2 2
D 2
2 .
2 2G
+
(
2 3.
.
04
3 - 2.
'
.
2
3 35!E
$!E
- *+
A92 ) ,
*'* 3 4 -./.5 60227-
- 3
+
3
'*+*)
" 8#*) '
$
( *+
-
<
'
I7. It is also his case that the future prospects as reckoned at 30% is not justified and the same should have been at 25% since the job of the deceased cannot be considered as permanent employment. Lastly, it is contended the interest as fixed by the High Court at 7.5% per annum is excessive and is without appropriate reason being assigned.
8. The learned counsel for the respondents/claimants would however seek to sustain the judgment passed by the High Court. On all the aspects which have been urged by the learned counsel for the appellant, it is contended that the MACT as well as the High Court have looked into the evidence which was available before it and has thereafter arrived at its conclusion, which does not call for interference.
9. In the light of the contentions put forth, insofar as the salary, we take note that by way of clarification, we had required the learned counsel for the respondents/claimants to point out that the amount paid was after deduction of the tax or proof for payment of tax, since the learned counsel for the appellant had contended that the same has not been done. Alongwith an application, in addition to the documents that were relied on before the MACT, the notice of assessment of the Inland Revenue
Authority of Singapore is produced. From the same, it would indicate that from the salary paid to the deceased, tax has been assessed in Singapore. Hence, there is no scope for double taxation on the same income. Therefore, deducting any amount towards tax once over again would not arise. Hence, his salary as reckoned by the High Court is justified and the same does not call for interference.
10. On the aspect relating to the future prospects, having noted the salary that was being drawn by the deceased, we have also taken into consideration that the deceased was employed in TATA Precision Industries. Another employee who was working as the Assistant Manager in Human Resources had been examined as PW 2 before the MACT to prove the same. In that regard, taking note of the evidence tendered by PW 2 to indicate the nature of employment of the deceased as also his prospects, ,
the future prospects as reckoned in the instant case is also justified. This is for the reason that though the learned counsel for the appellant seeks to point to the portion of the cross examination of the said witness to indicate that he had earlier been terminated from TATA Holset Private Limited and had thereafter been appointed in TATA Precision Industries, it would not lead to a conclusion that the job was not of permanent nature. In fact, even if the employment letter indicated that the job could be terminated with 30 days notice as insisted by the learned counsel, that cannot be the basis in as much as the said provision for termination notice would be available to both the parties, namely the employer and the employee and that by itself cannot indicate that the employment was of a temporary nature.
Right of the employer to terminate does not suggest it is temporary employment. Such right if exercised has to be in terms of law. Further, from the cross examination, the suggestion put to PW 2, would only indicate that the deceased who was earlier employed in TATA Holset Private Limited was thereafter taken in another sister concern of the same group providing him better prospects.
Therefore even if that aspect of the matter is kept in view, the future prospects as reckoned by the High Court is justified.J 06
D .+ - - -2.A92 )
3 4 9 : ;+ !E
2.
! -
.+ .
.+ .+ 3 . 3
2.
2 -
2
- 0
3.+
+2 3
+ # 3
+ .+
$ $
& %
?
,3;'
,3 )
,3 ? 2 F