The United India Insurance Co. ... vs Jaswant Singh & Ors.
2011 Latest Caselaw 4412 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    MAC. APP. No.21 OF 2006
                     MAC. APP. No.25 OF 2006


                                   RESERVED ON: 19th August, 2011
%                              PRONOUNCED On: 9th September, 2011

(1)   MAC. APP. No. 21 of 2006

      THE UNITED INDIA INSURANCE CO. LTD.              . . . APPELLANT.

                               Though:    Mr. Vishnu Mehra with Ms.
                                          Sakshi Gupta and Mr. Yatin
                                          Chandra, Advocates.

                               VERSUS

      JASWANT SINGH & ORS.                          . . .RESPONDENTS

                               Through:   Mr. Anshuman Bal, Advocate
                                          for Respondent Nos.1 & 2.

(2)   MAC. APP. No. 25 of 2006

      THE UNITED INDIA INSURANCE CO. LTD.              . . . APPELLANT.

                               Though:    Mr. Vishnu Mehra with Ms.
                                          Sakshi Gupta and Mr. Yatin
                                          Chandra, Advocates.

                               VERSUS

      DHARAM SINGH & ORS.                           . . .RESPONDENTS

                               Through:   Mr. Anshuman Bal, Advocate
                                          for Respondent Nos.1 & 2.

CORAM :-
    HON'BLE MR. JUSTICE A.K. SIKRI

      1.    Whether Reporters of Local newspapers may be allowed
            to see the Judgment?
      2.    To be referred to the Reporter or not?
      3.    Whether the Judgment should be reported in the Digest?



MAC. APP. No.21 & 25 OF 2006                           Page 1 of 10
 A.K. SIKRI, J.

1. Final arguments in these appeals were heard on 19th August,

2011. Counsel for the parties were given time to file the

written submissions within one week. Though this Court has

waited for almost two weeks, no such written submissions have

been filed by either parties. Thus, without waiting any further,

it is deemed proper to pronounce the judgment on the basis of

oral submissions of the counsel for the parties, pleadings in the

appeal and trial court record.

2. Two petitions were filed by the two sets of claimants, as a

result of singular accident which took place on 27th November,

2001 at about 1.20 a.m. On that ill-fated night, two persons,

viz., Devender Singh and Kapil Kumar were travelling by two-

wheeler scooter No. DL 2SF 2032, when the scooter was hit

against the rear of a truck tailor No. HR 26GA 2301, which was

parked in the middle of the road without headlights. Both the

occupants died. Both of them were aged about 20 years. They

were unmarried. By Claim Petitions compensation was sought

under Section 166 and 140 of the Motor Vehicle Act

(hereinafter referred to as „the Act‟) by their respective parents

(hereinafter referred to as „the claimants‟). These petitions

have been decided vide a common award dated 24th August,

2005 by the Motor Accident Claims Tribunal, New Delhi („the

Tribunal‟ for brevity), granting compensation of `5,12,400/- to

the parents of Devender Singh and `4,21,950/- to the parents

of Kapil Kumar. Interest @ 6% is also awarded to both sets of

claimants. In both these petitions, the claimants had

impleaded Pawan Kumar, owner of the truck as the respondent

No.1 and the appellant, the insurer of the truck as the

respondent No.2. The owner of the vehicle simply shifted the

burden on the insurance company on the ground that the

truck, i.e., the offending vehicle was comprehensively insured.

The insurance company took up the plea that the deceased

themselves were liable for their negligent driving. Following

issues were framed:

"(i) Whether the deceased Devender and Kapil sustained fatal injuries in road accident dated 27th November, 2001 because of rash and negligent driving of truck tailor No.HR 26GA 2301 by its driver owned by respondent No.1 insured with respondent No.2? OPP

(ii) If issue No.1 is proved in affirmative to what amount of compensation the petitioners are entitled to and from whom? OPP

(iii) Relief."

3. Claimant Jaswant Singh examined himself as PW1, Hari Kishan

as PW2, an eye-witness and claimant Dharam Singh examined

himself as PW3. No evidence whatsoever was led by Shri

Pawan Kumar or the appellant-Insurance company.

4. Believing the testimony of the eye-witness, who was driving his

Maruti car and was behind the scooter being driven by the

deceased, the learned Tribunal decided the issue No. (i) in

favour of the claimants holding that the offending truck was

parked in the middle of the road without any headlight or

without any indication light and there was no light on the road.

Due to complete darkness, they could not see the truck tailor

with the result scooter was hit with the rear of the truck in this

accident. Both the deceased sustained serious injuries and

were removed by the said eye-witness along with friends to

Rao Tula Ram Hospital, Jafarpur, Delhi where they were

declared brought dead. Parking the vehicle in the middle of the

road without indication lights/head lights was treated as

negligence on the part of the driver of the offending vehicle.

The Tribunal recorded that a person using a road at mid night

has no presumption that somebody would part his vehicle in

middle of the road without any indication lights at such late

hours when generally there is no traffic on the road. Road

users generally drive at fast speed at night. In such

circumstances, if accident is caused, it is solely due to culpable

negligence of owner or driver, whosoever had parked the

vehicle in middle of the road. In this case, it is not disputed by

the owner that his truck was parked in the middle of the road.

Even if truck was parked in the middle of the road by the

driver, driver was working under the employment of the owner

and hence, owner of the offending vehicle is liable to pay

compensation. It is vicarious liability which makes the owner

as well as insurance company liable to pay the compensation

amount. Even as per the F.I.R. as well as Challan, it was

mentioned that when the police visited the spot, the offending

vehicle was found parked in the middle of the road.

5. Learned Tribunal, thereafter, discussed the quantum of

compensation that was payable to the claimants and discussed

the cases of the two deceased persons in the following manner:

Kapil: Kapil was 20 years of age and a student of final

year, who was also doing computer course from NIIT. His

father appeared as PW1 and deposed that Kapil was doing

tuition work and earning `5,000/- per month. He was

unmarried and used to contribute his entire earning to the

maintenance of his family members. The Tribunal recorded

that there was no documentary proof of the deceased and

applied the ratio of the judgment in the case of Smt. Sarla

Dixit & Anr. v. Balwant Yadav & Anr., AIR 1996 SC 1274.

The learned Tribunal took into consideration minimum wages

as applicable in Delhi at a relevant time for a graduate on the

premise that the deceased, Kapil had already completed two

years of his Graduation and was a student of 3rd Year, when he

died who would have completed graduation within few months;

and he had also done Computer course from NIIT. Thus, the

minimum wage of `3352/- was taken into account.

Devender: Devender was also aged 20 years and was

cousin brother of Kapil. His father, Dharam Singh appeared as

PW-3 and deposed that he was earning `5,000 to `6,000/-. The

Tribunal recorded that in his case also documentary proof of

income was not given. However, on the premise that when

two boys of the same age and it was not necessary that a

Graduate earns more than a non-graduate and further that

Devender was doing business. In the case of Devender also,

the Tribunal took `3,350/-.

6. Thereafter, following the judgment of Sarla Dixit (supra), the

Tribunal considered the future prospect and opined that their

income would have been doubled, had they not died

premature. In this manner, the average gross income was

calculated as `5025/- (`3350 + `6700/2). Since the boys were

unmarried and aged 20 years, the Tribunal opined that they

would have contributed their entire income towards

maintenance of their family at least for a period of next 6/7

years. Thereafter, they would have contributed one third

towards the maintenance of their parents. On that basis,

average dependency of parents was taken as 50% of their

monthly income, which comes to `2512/-, rounding it off to

`2515/-. The annual loss of dependency was, thus, calculated

at `30,150/- (2515 x 12). Thereafter, taking into consideration

the age of the parents, Multiplier of 16 in the case of Kapil and

Multiplier of 13 was applied in the case of Devender. On this

basis, compensation of `4,82,400/- and `3,91,950/- respectively

was calculated. Both the claimants were given `10,000/- and

`20,000/- on account of loss of love and affection as well and

pain and agony thereby worked out to a total compensation of

`5,12,400/- and `4,21,950/- respectively.

7. In these circumstances, appeals preferred by the insurance

company against the aforesaid common award of the learned

Tribunal, two primarily contentions are raised. First contention

is predicated on Section 149(2) of the Act and it is argued that

since the driver of the offending vehicle was not holding a

driving license, the insurance company could not be held liable

to pay the compensation. It was submitted that the Tribunal

had not dealt with this issue at all. Learned counsel also

pointed out that notice under Order XII Rule 8 of the Code of

Civil Procedure was served upon the owner/driver of the

vehicle. But in response, neither they delivered the license nor

they produced the driving license before the Tribunal. In these

circumstances, adverse inference should have been drawn

against them. Second argument was that in any case, the

compensation awarded was excessive.

8. Reverting to the first contention, it can be seen from the

argument raised by the learned counsel for the appellant that

the appellant is taking shelter of the statutory defence

available under Section 149(2) of the Act. Accordingly to the

learned counsel, the driver of the offending vehicle truck was

not holding any driving license. Notice under Order XII Rule 8

issued, which was not replied to. Grievance is that the Tribunal

has not dealt with this aspect. However, when one peruses the

written statement to the claim filed by the claimants, it would

be found that no such plea was taken specifically or in clear

terms. It appears that for this reason, even no issue was

framed. Therefore, the Tribunal cannot be blamed or faulted

with for non-consideration of the aforesaid purported plea. It is

also to be noted that no evidence was laid before the learned

Tribunal to show that the driving license was fake and no

witness was produced by the Transport Authority. It cannot be

presumed that the driver was not having a valid driving license

merely because both the driver and the owner of truck No. HR

26GA 2301 did not appear before the Tribunal and were

proceeded ex parte or did not respond to notice under Order

XII Rule 8 of C.P.C. This aspect is clearly covered by the

judgment of the Supreme Court in National Insurance

Company Ltd. Vs. Swarn Singh and Ors., 2004 (3) SCC

297.

9. Even otherwise, as per law, the liability of insurance company

qua the claimants would still remain. At the most, it would give

the insurance company right to recover the amount from the

driver/owner of the offending truck.

10. In this view of the matter, it would be open to the insurance

company to file appropriate case against the driver/owner of

the offending vehicle for recovery of the amount. If any such

suit is filed , the same can be defended on all possible defenses

including that of limitation.

11. Coming to the second contention based on excessive

compensation given by the Tribunal, apart from raising a plea

that the claim is excessive and in regard to the mandatory

provisions of Section 166 of the Act, nothing is pointed out as

to how the award of the claim is excessive. No specific

argument was raised contesting the finding of the Tribunal on

this aspect.

12. In the absence of any such plea, it is not possible to accept the

vague contention of the appellant raised in this behalf. The

result of the aforesaid discussion would be to dismiss the

present appeal.

No costs.

(A.K. SIKRI) JUDGE

SEPTEMBER 09, 2011 pmc