United India Insurance Co. Ltd. vs Neena Somani & Ors.
2011 Latest Caselaw 4457 Del

                                       REPORTED
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+     MAC. APP. 331/2008

UNITED INDIA INSURANCE CO. LTD.        ..... Appellant
                  Through: Mr. L.K. Tyagi, Advocate

                   versus

NEENA SOMANI & ORS.                                ..... Respondents
                 Through:              Mr. Satyavan Kudalwal,
                                       Advocate for the respondents
                                       No.1 and 2

+     (CM No.        )to be converted in MAC. APP. No.


NEENA SOMANI & ANR.                                ..... Appellants
                 Through:              Mr. Satyavan Kudalwal,
                                       Advocate
                   versus

UNITED INDIA INSURANCE CO. LTD.
& ANR.                                  ..... Respondents
                  Through: Mr. L.K. Tyagi, Advocate for
                            the respondent No.1

%                           Date of Decision : September 13, 2011

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
   to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?


MAC. APP. 331/2008 and MAC.APP                             Page 1 of 17
                              JUDGMENT

: REVA KHETRAPAL, J.

1. By this common order, it is proposed to decide both the

aforesaid appeals assailing the judgment of the learned Motor

Accidents Claims Tribunal in Suit No.490/04, whereby the learned

Tribunal passed an award in the sum of ` 84,29,000/- alongwith

interest at the rate of 7% per annum from the date of the filing of the

petition. The appellant in the first appeal is, M/s. United India

Insurance Co. Ltd., which has prayed for setting aside/modification of

the impugned award on a number of grounds, whereas the appellants

in the second appeal, are the claimants, who seek enhancement of the

award amount on the ground that the quantum of compensation

awarded to them has not been calculated in accordance with the well

settled principles of law.

2. The concise facts leading to the filing of the present appeal are

that a Claim Petition was filed by the parents of one Rahul Somani

under Section 166 of the Motor Vehicles Act, 1988, claiming

compensation on account of his death in a road accident which took

place in the night intervening 16th/17th August, 1997. On the fateful

night, the car of the deceased, being a Maruti car bearing No.DL-

3CA-9612, coming from the side of New Friends Colony, smashed

against the back portion of a stationary truck bearing No.HRS-2102

which was parked in the middle of the road on Modi Flyover,

resulting in fatal injuries on the person of Rahul Somani, who expired

on the spot.

3. The insured, that is, the owner of the offending truck, did not

contest the case despite service of notice upon him and was proceeded

ex parte. A written statement was, however, filed by the insurer, (the

appellant herein), denying the contents of the Claim Petition and

claiming that the truck had gone out of order due to mechanical fault,

and was parked on the side of the road with its rear red light on and

stones and bricks placed around the stationary vehicle to give

adequate indication to the oncoming vehicles. It was further stated in

the written statement that the deceased was either under the influence

of liquor or dozing while driving his car and had dashed against the

rear portion of the parked vehicle insured with the appellant. It was

also pleaded that the accident had not taken place due to the rash and

negligent driving of the truck insured with the appellant, and that the

police had been misled into registering the First Information Report

bearing No.872/1997, which was subsequently cancelled and thus no

charge-sheet was filed against the driver of the truck.

4. The learned Tribunal, after scrutinizing the evidence on record,

directed the appellant-Insurance Company to pay the awarded amount

on the ground that on the date of the accident the vehicle involved

was fully covered under a valid insurance policy, Ex.R2W2/1 in the

name of the respondent No.3-insured. The learned Tribunal further

held that cancellation of the FIR pertaining to the accident did not

absolve the Insurance Company of its liability to pay compensation to

the third party involved in the accident.

5. In the course of hearing before this Court, Mr. L.K. Tyagi, the

learned counsel for the appellant has vociferously contended that the

learned Tribunal erred in fastening the liability of the award amount

on the Insurance Company and in not appreciating the fact that the

accident had occurred due to the sole negligence of the deceased. Mr.

Tyagi relied upon the judgment of the Supreme Court in the case of

Raj Rani and Ors. Vs. Oriental Insurance Co. Ltd. and Ors. 2009

ACJ 2003 to contend that the truck being stationary, some amount of

negligence on the part of the deceased could not be ruled out.

According to him, the learned Tribunal ought to have apportioned the

liability and fixed the contributory negligence of the deceased to the

extent of 50% keeping in view the ratio of the judgment in Raj Rani's

case (supra). He further contended that there being no eye witness to

the accident and no charge-sheet having been filed against the driver

of the truck, the negligence on the part of the truck insured with the

appellant had not been proved on record. In such circumstances, he

contended that the learned Tribunal erred in holding that the doctrine

of res ipsa loquitor would be applicable to the facts of the case and in

drawing adverse inference against the driver of the offending truck on

the ground that he did not appear in the witness box. Mr. Tyagi also

submitted that the driver of the truck not having been made a party to

the petition, the question of his appearing as a witness did not arise

and consequently, no adverse inference could have been drawn

against him.

6. As regards the quantum of compensation awarded to the legal

representatives of the deceased, Mr. Tyagi submitted that the learned

Tribunal erred in considering the income of the deceased on the basis

of his income-tax return filed for the assessment year 1997-98 and in

not taking into consideration the fact that the business continued even

after the death of the deceased and was being run by the father of the

deceased. It was also contended by him, relying upon the judgment

of the Supreme Court in the case of Smt. Sarla Verma and Ors. vs.

Delhi Transport Corporation and Anr. (2009) 6 SCC 121, that in

view of the fact that the deceased was unmarried, the learned Tribunal

erred in deducting one-third (1/3rd) from his income towards his

personal expenses and that the deduction should have been not less

than one-half (1/2) of the income of the deceased. Relying upon the

judgment of the Supreme Court in the case of New India Assurance

Co. Ltd. vs. Smt. Shanti Pathak and Ors., I (2008) ACC 45, he

further contended that the age of the father of the deceased being 52

years, the appropriate multiplier could not have been more than 8

years and the Tribunal erred in applying the multiplier of 11 years to

ascertain the total loss of dependency of the appellants.

7. Needless to state, all the aforesaid contentions of the learned

counsel for the appellant-Insurance Company were strongly refuted

by Mr. Satyavan Kudalwal, the learned counsel for the

claimants/respondents No.1 and 2, who sought to support the findings

of the learned Tribunal on all counts, except to urge that considering

the age of the deceased, the amount of the award should have been

more, keeping in view the fact that had the deceased not met with the

unfortunate accident his income would have most certainly increased

with the passage of time.

8. Adverting first to the issue of contributory negligence, the

undisputed facts are that the claimants have proved on record copy of

the FIR as Ex.PW1/1 and the appellant has also proved on record the

copy of the FIR as Ex.R2W1/2, which shows that both the parties

have relied upon the First Information Report. The factum of the

accident is thus not in dispute as also the manner in which the same

took place. However, Mr. Tyagi's contention regarding the

contributory negligence of the deceased does not find favour with me

for the reason that the question as regards contributory negligence is

essentially a question of fact, and the facts in the instant case do not

inculpate the deceased. In the instant case, the accident occurred in

the dead of the night, that is, at 12.30 A.M., on a flyover, being the

Modi Flyover. The site plan Ex.PW1/2, which was prepared by the

police in the course of investigation of case FIR No.872/97 shows

that the place of the accident is in the middle of the road. It further

shows that the stationary truck was lying parked in the middle of the

road abandoned by its driver in a dangerous condition. There is no

evidence produced by the respondent No.3 - owner to prove that the

driver or any other person was left on the driver's seat who had the

licence to drive the vehicle. There is also no evidence adduced by the

respondent No.3 to prove that any indicator, indicating that the truck

was stationary or non-operational, was there on the abandoned

vehicle. As regards the contention of the counsel for the appellant

that the deceased was either under the influence of alcohol or was

dozing, this contention is without merit as there is on record the

toxicological analysis report of the body of the deceased as

Ex.PW1/5, which proves that the deceased was not under the

influence of any drug or alcohol at the time of the accident.

9. The plea of the appellant that the truck was out of order due to

some mechanical defect is also unsubstantiated on record. No

mechanical inspection of the truck was conducted even though its

number was readily available with the police after the registration of

the FIR. Strangely, the appellant-Insurance Company has taken the

plea that the rear red light of the truck was on and stones and bricks

had been placed around the non-functional vehicle, but not an iota of

evidence in this regard has been brought on record. Neither the driver

of the alleged truck who had left the vehicle in such a manner has

been examined nor the owner of the truck has been produced in the

witness box. In such circumstances, in my view, the learned Tribunal

rightly concluded that the truck driver was guilty of violation of the

express provisions of Sections 122, 126 and 127 of the Motor

Vehicles Act, 1988 by leaving the offending truck unattended,

without due and proper caution, in the middle of the road, and that too

on a flyover. For the sake of convenience, Sections 122, 126 and 127

are reproduced hereunder:

"Section 122. Leaving vehicle in dangerous position.- No person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers.

"Section 126. Stationary vehicles.- No person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there is in the driver's seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver.

"Section 127. Removal of motor vehicles abandoned or left unattended on a public place.- (1) Where any motor vehicle is abandoned or left unattended on a public place for ten hours or more or is parked in a place where parking is legally prohibited, its removal by a towing service or its immobilisation by any means including wheel clamping may be

authorised by a police officer in uniform having jurisdiction.

(2) Where an abandoned, unattended, wrecked, burnt or partially dismantled vehicle is creating a traffic hazard, because of its position in relation to the public place, or its physical appearance is causing the impediment to the traffic, its immediate removal from the public place by a towing service may be authorised by a police officer having jurisdiction. (3) Where a vehicle is authorised to be removed under sub-section (1) or sub-section (2) by a police officer, the owner of the vehicle shall be responsible for all towing costs, besides any other penalty."

10. Further, on the aspect of negligence of the driver of the

offending truck, the learned Tribunal has, in my view, rightly held

that the standard of proof is altogether different in criminal cases and

in civil cases. The proceedings before the Motor Accidents Claims

Tribunal are of a civil nature and it is settled law that in civil cases it

is the preponderance of probability and not the rule of proof beyond

any reasonable doubt which holds the field. Adverse inference was

also rightly drawn by the learned Tribunal against the driver who did

not appear in the witness box to explain the manner in which the

accident occurred.

11. As regards the non-impleadment of the driver by the claimants

and the reliance placed by the counsel for the appellant on the case of

The Oriental Insurance Co. Ltd. vs. Meena Variyal and Ors., 2007

(5) SCALE 269, I am constrained to hold that the claimants cannot be

faulted for not impleading the driver of the offending truck. The

record reveals that initially the driver of the offending truck was

arrayed as a party respondent to the proceedings, but since the name

and address of the driver could not be ascertained and the same were

not furnished by the other respondents to the Claim Petition, the

driver of the offending truck was deleted from the array of parties on

20.02.2003. As noted by the learned Tribunal, notice was given to

the owner of the offending truck by the Tribunal, but notwithstanding

the owner of the offending truck did not attend the court proceedings

and chose to stay away. Since neither the Insurance Company nor the

owner of the offending truck disclosed the name of the driver, and

even the police of the concerned Police Station did not disclose the

name of the driver of the offending truck, the claimants were left with

no option but to pray for the deletion of the name of the driver from

the array of parties. It was incumbent upon the police to have issued

notice under Section 133 of the Motor Vehicles Act to the owner of

the truck for disclosing the name of the truck driver, but it failed to do

so. The reliance placed by the counsel for the appellants, in the above

context, on the judgment of the Supreme Court in the case of Meena

Variyal (supra) is also misplaced. In this case, the name of the

driver of the truck, Mahmood Hasan, was known to all concerned and

it was in such circumstances that the Hon'ble Supreme Court held

that the Tribunal ought to have directed the claimants to implead

Mahmood Hasan who was allegedly driving the vehicle at the time of

the accident, the rationale being that when a car belonging to the

owner, insured with the Insurance Company and being driven by a

driver employed by the insured, meets with an accident, the primary

liability under law for payment of compensation is that of the driver.

The liability of the owner is only vicarious and that of the insurer is

by virtue of the contract of Insurance with the owner. In the instant

case, on the other hand, the name of the driver is not forthcoming on

the record and it is not known who was the driver when the truck was

parked in the middle of the road. For the same reason, the reliance

placed on behalf of the appellant upon the judgment of a Single

Bench of the Madhya Pradesh High Court in New India Assurance

Co. Ltd. vs. Munnidevi and Ors., I (1994) ACC 648 is also

misplaced.

12. Adverting next to the aspect of quantum of compensation

awarded by the learned Tribunal, in my opinion, the learned Tribunal

cannot be faulted for assessing the quantum of compensation on the

basis of the income-tax return of the deceased for the assessment year

1997-98, which was filed prior to the death of the deceased, as it

pertains to the financial year 1996-97. According to this Return, the

deceased was earning ` 11,45,410/- per annum. Even though,

subsequent to his death, his father became the proprietor of the

business of the deceased, but the profit and turnover of the business

were reduced substantially, which fact is evident from the income-tax

returns for the assessment years 1999-2000 to 2002-2003 placed on

record as Ex.PW1/8 (collectively). Thus, in my view, the Tribunal

rightly assessed the income of the deceased to be in the sum of

` 11,46,000/- per annum. The deceased being self-employed and no

other evidence having been brought on record to show a rising trend

in his income, the Tribunal rightly did not take into account the future

prospects of the deceased.

13. As regards the deduction made by the learned Tribunal towards

the personal expenses of the deceased, I am at one with the learned

counsel for the appellant-Insurance Company that the Tribunal ought

to have deducted one-half (1/2) instead of deducting one-third (1/3rd)

of the income of the deceased towards his personal expenses, the

deceased being a bachelor and his only dependents being his parents.

Thus calculated, the annual loss of dependency of the parents of the

deceased comes to ` 5,73,000/- per annum. It is settled law that this

multiplicand must be augmented by the use of an appropriate

multiplier in consonance with the age of the deceased or the age of

the claimants, whichever is higher. It is not in dispute that the father

of the deceased was 52 years of age on the date of the accidental

death of his son. Thus, in my view, the appropriate multiplier in

consonance with the tabulated multipliers laid down in the case of

Sarla Verma (supra) would be the multiplier of 11. In this manner,

the total loss of dependency of the respondents No. 1 and 2 works out

to ` 63,03,000/-. Adding ` 25,000/- to the aforesaid sum of money as

awarded by the learned Tribunal towards loss of love and affection of

the deceased and funeral expenses, the total amount payable to the

parents of the deceased comes to ` 63,28,000/-. The award amount is

modified accordingly.

14. In view of the aforesaid, the sum of ` 63,28,000/- is adjudged

to be the fair and just compensation payable to the legal

representatives of the deceased in the instant case alongwith interest

thereon at the rate of 7% per annum as awarded by the learned

Tribunal from the date of the filing of the petition till the date of

realisation. In view of the fact that the amount of the award, in

accordance with the judgment of the learned Tribunal, is lying

deposited with the Registrar General of this Court in the form of an

FDR, the Registrar General shall release to the legal representatives

of the deceased the amount of ` 63,28,000/- alongwith interest

thereon at the rate of 7% per annum from the date of the filing of the

petition till payment. The balance amount, if any, shall be returned to

the appellant-Insurance Company.

15. Resultantly, the appeal of the Insurance Company is partly

allowed and the appeal of the claimants is dismissed as being devoid

of merit. There will be no order as to costs.

16. Records of the learned Tribunal be sent back forthwith.

REVA KHETRAPAL (JUDGE) September 13, 2011 km