Delhi High Court
New India Assurance Co Ltd vs Hari Om & Ors on 18 November, 2014
$~A-52 to 62
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 18.11.2014
+ MAC.APP. 431/2011
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through
versus
HARI OM & ORS ..... Respondents
Through
+ MAC.APP. 434/2011
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through
versus
HARI OM & ORS ..... Respondents
Through
+ MAC.APP. 432/2011
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through
versus
HARI OM & ORS ..... Respondents
Through
+ MAC.APP. 538/2011
HARI OM VERMA ..... Appellant
Through
versus
PAPPU & ORS ..... Respondents
Through
+ MAC.APP. 537/2011
HARI OM VERMA ..... Appellant
Through
versus
PAPPU & ORS ..... Respondents
MAC.APP.431/2011 & connected cases Page 1 of 15
Through
+ MAC.APP. 639/2011
PREM NATH ARORA ..... Appellant
Through
versus
HARI OM VERMA & ORS ..... Respondents
Through
+ MAC.APP. 640/2011
PREM NATH ARORA ..... Appellant
Through
versus
HARI OM VERMA & ORS ..... Respondents
Through
+ MAC.APP. 649/2011
PREM NATH ARORA ..... Appellant
Through
versus
HARI OM VERMA & ORS ..... Respondents
Through
+ MAC.APP. 692/2011
SANDEEP SETHI ..... Appellant
Through
versus
HARI OM VERMA & ORS ..... Respondents
Through
+ MAC.APP. 694/2011
SANDEEP SETHI ..... Appellant
Through
versus
HARI OM VERMA & ORS ..... Respondents
Through
MAC.APP.431/2011 & connected cases Page 2 of 15
+ MAC.APP. 697/2011
SANDEEP SETHI ..... Appellant
Through
versus
HARI OM VERMA & ORS ..... Respondents
Through
Present: Mr.K.L.Nandwani and Mr.Manish Kaushik, Advocates for the
New India Assurance company
Mr.Vinod Sharma, Advocate for Mr.Prem Nath Arora.
Mr.Arvind Bhardwaj, Advocate for Mr.Sandeep Sethi.
Ms.Manpreet Kaur, Advocate for Mr.Hari Om Verma.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. These appeals are filed against a common Award dated 19.02.2011. The
award disposed of three claim petitions MACT No.268/2010 pertained to the
injuries sustained by the claimant Hari Om Verma. MACT No.277/2010
pertained to the death of the wife of Hari Om Verma and MACT No.264/2010
pertained to the death of Ms.Sonia daughter of Hari Om Verma.
2. The brief facts are that the claimant Shri Hari Om Verma with his wife
and daughter were going on a motorcycle on 11.09.2005. At Mandir Marg
Chowk, Krishna Nagar Chowk, Delhi, all of a sudden a Tata Indica car driven
by its driver at a fast speed rashly and negligently came and took a sudden right
turn without caring for the signal. The car hit the motorcycle and thereafter ran
over the central divider of the chowk. As a result of the accident, the claimant
Shri Hari Om Verma, his daughter and wife fell down. They, however, did not
receive any injury. They were trying to stand up, but in the meantime a truck
driven by its driver at a very fast speed rashly and negligently came from
behind and ran over Hari Om Verma, his wife and daughter. The daughter and
wife of Shri Hari Om Verma died. Shri Hari Om Verma himself suffered
serious injuries. Compensation was awarded to the claimant. 50% liability was
imposed on New India Assurance Company Ltd. who insured the offending
truck. 50% liability was thrust on the owner of driver of the Indica car, as it
was not insured.
MAC.APP.Nos.431/2011, 432/2011 & 434/2011
3. These are appeals filed by the New India Assurance Company Limited
who had issued the insurance policy for the offending truck. By the said
appeals they have challenged the impugned Award.
4. Learned counsel appearing for the appellant insurance company submits
that it is a case where the claimants were also responsible for contributory
negligence as three people were sitting on the motorcycle contrary to section
128 of the Motor Vehicles Act, 1988. He secondly submits that the truck
which is insured by the appellant did not have a valid permit and hence the
appellants do not have any liability to pay the awarded amount. It is lastly
submitted that even otherwise the accident did not take place on account of any
contributory negligence of the truck as he submits that as stated by PW-3 an
eye witness, the driver of the Indica car was drunk.
5. As far as the first submission of contributory negligence is concerned, I
am not persuaded to interfere with the Award. PW-2/Hari Om Verma in his
evidence has said that he was driving his motorcycle at a normal speed at the
Mandir Marg Road, Krishna Nagar Chowk. The Indica Car came and took a
sudden right turn and hit the motorcycle. He further states that due to the
Indica car hitting the motorcycle the occupants of the motorcycle did not
receive any injury and they were in the process of trying to stand up when
suddenly a truck came from another side in a rash and negligent manner and
ran over the occupants of the motorcycle and dragged them all for a long
distance.
6. In the light of the above facts, the accident with the truck in any case
took place when the deceased and the claimant Hari Om Verma was in the
process of standing on the road. The fact that three of them were riding on the
motorcycle has nothing to do with the manner in which the truck caused
injury/death to the claimant/deceased. The fact that the motorcycle had three
occupants has no nexus to the accident. I do not find any merit in the same.
7. On the issue of permit, the Tribunal notes in its award that the insurance
company examined Shri Pawan Malhotra R3W1 who accepted/exhibited the
notice under Order 12 Rule 8 CPC to the driver and owner of the offending
truck to produce the permit and the driving license. The contention of the
appellant was noted that the said driver and owner failed to produce the driving
license or permit. The Tribunal further noted that attested copy of the driving
license of the driver of the offending vehicle, namely, Mr.Pappu and the
certificate of fitness of the Truck had already been filed by the police with the
status report. The Tribunal notes that no efforts were made by the insurance
company to get the said documents verified by examining the concerned officer
from the transport authority. The Tribunal relying upon the judgment of this
Court in the case of National Insurance Company vs. Nirabjit Kaur
MANU/DE/0933/2008 and of the Supreme Court in Narcinva V. Kamat and
Anr. vs. Alfredo Antonia Doe Martins and Ors., 1985 ACJ 397 held that onus
being on the insurance company as they did not take any steps to discharge the
onus, the liability would be of the insurance company.
8. I see no reason to differ with the said view. The relevant copy of driving
license of the driver of the offending vehicle and the copy of the RC are on
record. It was for the appellant to prove that they are not valid. They failed to
discharge the onus.
9. As far as the contention regarding the driver of the Indica Car being
drunk, PW-3 Khajan Saini has said that the Indica car was coming from the
sideways and touched the motorcycle lightly. He mentions that he could see
that the Indica car driver was drunk and could not control the vehicle.
10. Shri Sandeep Sethi R4W1 the driver of the offending vehicle Indica car
in his evidence by way of affidavit has said that he was returning home from
his factory. He says that the traffic signal was blinking and the signal was free
for every direction. He of course gives a different story of the Indica car being
struck by the truck which was overloaded with iron rods because of which his
car jumped over the divider after hitting the vehicle.
11. However, it is not possible to conclude about the driver of the Indica car
being drunk merely on the basis of statement of PW-2. No breath analysis test
or any scientific investigation was done to show that the driver of the Indica car
was drunk and was not able to control the vehicle.
12. In the absence of any documentary proof on the basis of a bald statement
of PW-3 who had no way of really verifying the alleged alcohol intake of the
driver of the offending vehicle India car, it is not possible to conclude that the
said driver was drunk.
13. In the light of the above, there is no merit in the submissions of the
appellant/insurance company. These appeals are accordingly dismissed.
MAC.APP.692/2011, 694/2011. 697/2011, 639/2011, 640/2011 & 649/2011
14. MAC.APP.No.692/2011, 694/2011 & 697/2011 are filed by Shri
Sandeep Sethi, the driver of the offending vehicle i.e. Indica car and also the
present owner of the car. Mac.App.No.639/2011, 640/2011 and 649/2011 are
filed by Shri Prem Nath Arora, the previous owner of the Indica car who
continues to be the registered owner of the car.
15. The Tribunal noted that 50% of the liability is to be fastened on the
driver and owner of the Tata Indica Car. The Tribunal also noted that R5W1
Shri Prem Nath Arora has deposed that he has sold the car to Shri Sandeep
Sethi on 16.12.2004. Copy of the delivery receipt was exhibited as Ex.R5/1.
He has also noted that after the accident it was Sandeep Sethi who approached
for release of the car on superdari. The Tribunal notes that Shri Prem Nath
Arora got the car released on superdari but handed it over to Shri Sandeep
Sethi. Sandeep Sethi has denied having purchased the Indica car from Shri
Prem Nath Arora and also denied his signatures on the receipt. It is, however,
not denied that he was driving the vehicle. The Tribunal also noted that Shri
Prem Nath Arora failed to inform the Transport Department about the sale.
Further Shri Prem Nath Arora had taken the vehicle on superdari from the
criminal court meaning thereby that he himself claimed himself to be the owner
of the vehicle and he executed the superdarinama. Hence, the Tribunal held that
Shri Prem Nath Arora was the owner of the vehicle. However, Shri Sandeep
Sethi was held to be the driver and both were held jointly and severally liable
to satisfy 50% of the awarded amount. The Indica car was not insured.
16. Learned counsel appearing for the said owner and driver of the Indica
Car submits that the Tribunal has wrongly thrusted 50% liability on them. It is
submitted that no accident took place with the Indica car. In fact reliance is
placed on the evidence of PW-2 according to whom the Indica car only brushed
against the motorcycle and the occupants of the motorcycle were in the process
of getting up without having suffered any injury when they were run over by
the truck. It is secondly submitted that the owner Shri Prem Nath Arora and
the driver Shri Sandeep Sethi of the Indica Car initially in the claim petition
were not made a party. They were subsequently added as a party to the claim
petition as an afterthought.
17. In my opinion the evidence of PW-1 and PW-2 is quite clear. It is a clear
case of contributory negligence as the occupants of the motorcycle were thrown
on the road on account of the accident caused by the offending vehicle i.e.
Indica car. The traffic signal as per PW-1 and PW-2 was green for the
motorcycle. Hence, he had a right of way. Yet the Indica car has crossed the
crossing wrongfully without the signal and hit the motorcycle. The car was
obviously at a high speed because after hitting the motorcycle the driver could
not control the car but has climbed over the divider. Clearly, the Indica car was
being driven rashly. There is no merit in the said plea as it is a clear case of
contributory negligence.
18. The contention on the issue of impleadment of Mr.Sandeep Sethi and
Mr.Prem Nath Arora after filing of the claim petition has no meaning. It does
not in any manner change or modify the facts and the reasons as to why the
accident has taken place. There is no merit in these appeals and the same are
dismissed.
MAC.APP.No.538/2011
19. This appeal is filed by Shri Hari Om Verma for enhancement of
compensation.
20. In the said accident Shri Hari Om Verma suffered injuries on the leg. He
was admitted to GTB Hospital where his operation was conducted. The
Disability Certificate shows that he had 75% disability of all four limbs. The
Tribunal assessed the disability of the whole body at 40%. The Tribunal further
in the absence of any material on record assessed the income of the claimant
based on minimum wages i.e. Rs.3200/- per month. On the basis of this
assessment and noting that the age of the injured was 43 years at the time of the
accident a total compensation of Rs.4,53,968/- was awarded. The break-up is
as follows:-
1.Compensation towards pain and 95,000/-
suffering
2.Future loss in earning capacity 2,15,040/-
due to disability
3..Expenses towards medical bills 13,928/-
4.Compensation towards loss of 1,00,000/-
amenities & disfiguration
5.Compensation towards 20,000/-
conveyance and special diet
(without bills)
6. Medical Expenses without bills 10,000/-
Total 4,53,968/-
21. Learned counsel appearing for the claimant submits that the functional
disability of 40% is wrong and the functional disability should have been at
least 75%. She further submits that after having assessed the income at Rs.
3,200/- the income has not been increased for future prospects for computing
loss of dependency. It is further submitted that the injured remained on bed for
nearly two years and loss of salary has not been awarded. In addition, it is
urged that compensation for pain and suffering, conveyance and diet is on a
much lower side. It is further stated that no attendant charges were given.
22. The Disability Certificate Ex.P5 issued by Lal Bahadur Shastri Hospital,
Delhi states that the injured has 75% disability of all four limbs. In his
affidavit by way of evidence it is only stated that he was running a business of
vehicle repairing garage but due to the accident he has lost his business and that
after the accident his shop is closed.
23. It is true that the injured has produced no documents whatsoever.
Further the affidavit filed is cryptic and gives no details of the work he was
doing prior to the accident. No documentary evidence has been placed on
record regarding the nature of disability suffered and how the disability has
affected his mobility and functioning and carrying on his work
24. On the medical treatment of the injured Shri Hari Om Verma Mr Prem
Nath, Record Clerk from LBS hospital had appeared. He got photocopies of
summoned record which were marked as „Mark A‟. He did not bring the
originals. No medical record has been placed on record.
25. Clearly the evidence is quite inadequate. However, I may note that the
evidence by way of affidavit which is filed by Shri Hari Om Verma bears his
thumb impression. It appears that he is illiterate and had to rely upon legal
advice to prepare his evidence. It may not be proper to blame him.
26. In my view the injured has suffered physical impairment of four limbs to
the extent of 75%. Irrespective of the nature of job that he may have been
performing the nature of disability is such as to severally hamper his
functioning. Though the award is not clear, his income appears to be assessed
based on minimum wages for an unskilled worker. Accordingly, in these facts
and circumstances, I enhance the functional disability assessed by the Tribunal
from 40% to 75%.
27. On future prospects the injured was 43 years of age at the time of
accident. Keeping in view the judgment of the Supreme Court in Rajesh & Ors.
vs. Rajbir Singh & Ors., (2013) 9 SCC 54 and, V.Mekala vs. M.Malathi &
Anr., 2014 ACJ 1441, I enhance the income by 30% for the purpose of
computing loss of future earnings.
28. The loss of earning capacity due to disability now amounts to
Rs.5,24,160/- [(3200 +30%) x 12 x 75% x 14]
On the contention of learned counsel for the injured that he remained on
bed for two years, there is no evidence placed on record. In the absence of any
evidence on record it is not possible to award any compensation for the said
period. However, the Tribunal noted that the injured must have remained out
of work for 3-4 months. However, it did not grant any compensation for loss of
earnings for the said period. Hence, I award Rs.12,800/-(3200 x 4) as
compensation for loss of income for the period he had remained out of work
i.e. for four months.
29. Keeping into account the nature of injuries suffered by the injured I
enhance the compensation towards pain and suffering from 95,000/- to
Rs.1,50,000/-. Towards Conveyance and special diet I enhance the
compensation from Rs.20,000/- to Rs.75,000/-.
30. On attendant charges I may note that the Tribunal has concluded that the
injured must have remained out of work for 3-4 months. Hence, keeping this
into account, I award a sum of Rs.25,000/- as attendant charges.
The total compensation now payable to the injured reads as under:-
1.Compensation towards pain and Rs.1,50,000/-
suffering
2.Future loss in earning capacity Rs.5,24,160/-
due to disability
3..Expenses towards medical bills Rs.13,928/-
4.Compensation towards loss of Rs.1,00,000/-
amenities & disfiguration
5.Compensation towards Rs.75,000/-
conveyance and special diet
(without bills)
6. Medical Expenses without bills 10,000/-
7. Attendant Charges Rs.25,000/-
8. Loss of income during treatment Rs.12,800/-
Total Rs.9,10,888/-
31. The insurance company will pay 50% of the enhanced compensation.
Shri Sandeep Sethi and Prem Nath Arora will pay 50% of the enhanced
compensation. The compensation shall be paid alongwith interest @ 6% per
annum from the date of filing the claim petition till recovery. The enhanced
compensation amount will be deposited with the Registrar General of this
Court. On receipt of the said amount the Registrar General shall release the
said compensation amount.
MAC.APP.537/2011
32. This appeal pertains to the compensation awarded by the tribunal to the
dependents of deceased Ms. Sonia, a young girl of 20 years of age. No cogent
submissions have been made to explain as to why the award passed in the
present case is erroneous.
33. The tribunal noted that as per PW1, the deceased was self-employed and
earning Rs.3000/- per month. The tribunal noted that the wages for unskilled
worker at the relevant time was Rs.3165/- per month. The tribunal accepted the
contention of the appellant and took the income of the deceased at Rs.3000/-
per month. The total loss was assessed at Rs.5,04,000/-. The petitioner was not
dependent on deceased, and therefore, the loss of Estate was taken as 1/3rd i.e.
Rs.1,68,000/-. Rs. 10,000/- was given under loss of love and affection and
Rs.5000/- towards funeral expenses. A total compensation of Rs.1,83,000/- was
awarded. I may however add that the tribunal has taken the age of the deceased
as 20 years and has taken a multiplier of 14 based on the age of the father of the
deceased.
34. This Court in the case of Mohd. Hasnain & Ors. vs. Jagram Meena &
Ors. MANU/DE/0715/2014; 2014 (142) DRJ 303 held that the multiplier has
to be based on the age of the deceased. That was a case where the age of the
deceased was 39 years.
35. This Court in the said case of Mohd. Hasnain & Ors. vs. Jagram Meena
& Ors. (supra) relied on the judgments of the Supreme Court in case of M.
Mansoor vs. United India Insurance Co. Ltd., MANU/SC/1042 and in the
case Amrit Bhanu Shali & Ors. vs. National Insurance Co. Ltd. & Ors.
MANU/SC/0537/2012. In Amrit Bhanu Shali, the Supreme Court held as
follows:-
"15. The selection of multiplier is based on the age of the deceased
and not on the basis of the age of the dependants. There may be a
number of dependants of the deceased whose age may be different
and, therefore, the age of the dependants has no nexus with the
computation of compensation."
36. M. Mansoor vs. United India Insurance Co. Ltd (supra) was a case
where the deceased was a bachelor of 24 years of age and the Supreme Court
held that the selection of the multiplier is based on the age of the deceased and
not the age of the dependants. Further, in the case of Amrit Bhanu Shali &
Ors. vs. National Insurance Co. Ltd. & Ors. (supra) the deceased was a
bachelor aged 26 years and the Court applied the multiplier of 17.
37. I may further note that in MAC APP.761/2012 Rakesh and Ors. vs.
National Insurance Co. Ltd. and Ors. vide judgment dated 02.04.2014 where
the deceased was 24 years the Tribunal had taken the multiplier of 13
considering the age of the mother of the deceased, as he was a bachelor. This
court relying upon the judgments of the Supreme Court in the case of Mohd.
Hasnain & Ors. vs. Jagram Meena & Ors. (supra) applied a multiplier of 18
based on the age of the deceased. 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 said judgment
passed by this Court, following the judgments of the Supreme Court, the
Tribunal erred in not taking the age of the deceased to consider the appropriate
multiplier.
38. Accordingly, appropriate multiplier to be used is 18. Hence, the loss of
dependency now comes to Rs. 6,48,000/-. (3,000 x 12 x 18). Regarding love
and affection, I enhance the compensation payable from Rs.10,000/- to
Rs.1,00,000/- (Rupees One Lac).
39. The tribunal has assessed the loss of Estate as 1/3 rd no reason has been
given as to why in the facts and circumstances, this may not be accepted.
Hence, the total compensation would be as follows Rs.2,16,000/- (6,48,000 x
1/3).
40. Hence, the total compensation amounts to Rs.3,26,000/-.
41. The insurance company may deposit the additional compensation with
interest @ 7.5% per annum from the date of filing of the claim petition till
deposit in the Court. On receipt, the same may be released to the claimants.
JAYANT NATH, J
NOVEMBER 18, 2014
'raj'
