Manju Gupta And Ors vs Pratap Singh And Ors.
2015 Latest Caselaw 4119 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI
                                    Judgment Pronounced on: 22-05-2015
+     MAC.APP. 77/2005

      MANJU GUPTA AND ORS.                 ..... Appellants
                   Through Mr.O.P.Mannie, Advocate.

                          versus

      PRATAP SINGH AND ORS.               ..... Respondents
                   Through  Mr.Pankaj Seth, Advocate for
                            Insurance Company.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.

1. By the present appeal the appellant seeks to impugn the Award dated 17.4.2004.

2. The brief facts are that the Tribunal by the impugned Award disposed of two claim petitions. The claim petition in question was filed by the dependents of deceased Sanjay Gupta who was travelling in a tempo on the intervening night of 4th and 5th April 1995. The tempo met with an accident near District Shahjahanpur U.P. The driver of the tempo was driving the same at a fast speed in a rash and negligent manner and hit against a truck coming from the opposite direction. Based on the evidence on record the Tribunal concluded that the accident took place due to the rash and negligent driving of the driver of the tempo.

3. Regarding compensation the Tribunal awarded the following

compensation amounting to Rs.3,15,000/-.

      (a)Loss of dependency             Rs.2,70,000/-
      (b)Loss of consortium               Rs.20,000/-
      (c)Loss of love and affection       Rs.20,000/-
      (d)Funeral expenses                  Rs.5,000/-
      Total                             Rs.3,15,000/-

4. On the issue of apportionment of liability the Tribunal held that admittedly deceased Sanjay Gupta was travelling in the vehicle as a gratuitous passenger. The Tribunal relying upon the judgment of the Supreme Court in New India Assurance Company Ltd. vs. Asha Rani, 2003 ACJ 1 held that the respondent No.2 the insurance company has no liability and fastened the liability on the registered owner of the vehicle.

5. Learned counsel appearing for the appellants have made two submissions to impugn the award. Firstly, it is urged that the Tribunal has wrongly used the multiplier of 15 instead of 18 when the age of the deceased was 25 years old while calculating loss of dependency. Secondly, it is stated that there was no proof to show that the deceased was a gratuitous passenger and hence it is urged that the findings in the Award that the deceased is a gratuitous passenger is erroneous. The insurance company/respondent No.2 is also liable. Reliance was placed on the judgment of the Supreme Court in the case of Fahim Ahmad & Ors. vs. United India Insurance Co.Ltd. & Ors., II (2014) ACC 238 (SC) and the case of the Bombay High Court in United India Insurance Co.Ltd. vs. Sindhubai & Ors., 1 (2011) ACC 357.

6. Learned counsel appearing for the respondent No.2 has reiterated that the deceased was a gratuitous passenger.

7. In my opinion, there is merit in the contentions of the appellant. In the Award the Tribunal has merely done a guess work of the age of the deceased holding that there is no evidence on record to show the age of the deceased. The Tribunal notes that the multiplier for a victim in the age group of 20-25 is 17 but still as a rule of thumb adopts a multiplier of 15 though the Tribunal holds that the version of the claimant cannot be disbelieved. PW-2 Smt.Manju Gupta in her evidence has clearly said that the deceased was 21-22 years old. There was no cross-examination of the deceased on this aspect. In the claim petition also on this aspect she has stated that the deceased was 21-22 years old. Accordingly, I see no reason to disbelieve the said statement. In view of the judgment of the Supreme Court in Smt.Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr. (2009) 6 SCC 121, I change the multiplier from 15 as adopted by the Tribunal to 18 for computing loss of dependency. Thus, loss of dependency now comes to RS.3,24,000/- [(2000 x 12) - 1/4 ) x 18] . The compensation would now read as under:-

      (a)Loss of dependency            Rs.3,24,000/-
      (b)Loss of consortium              Rs.20,000/-
      (c)Loss of love and affection      Rs.20,000/-
      (d)Funeral expenses                 Rs.5,000/-
      Total                            Rs.3,69,000/-

8. Coming to the issue of liability. There is merit in the contention of the appellant. In the case of Fahim Ahmad & Ors. vs. United India

Insurance Co.Ltd. & Ors., (supra), the Supreme Court held as follows:-

"7. Although the plea of breach of the conditions of policy was raised before the Tribunal, yet neither any issue was framed nor any evidene led to prove the same. In our opinion, it was mandatory for respondent No.1-Insurance Company not only to plead the said breach, but also substantiate the same by adducing positive evidence in respect of the same. In the absence of any such evidence, it cannot be presumed that there was breach of the conditions of policy. Thus, there was no reason to fasten the said liability of payment of the amount of compensation awarded by the Tribunal on the appellants herein."

9. In the present case the onus was on the appellant to show that the deceased was a gratuitous passenger. The respondent insurance company led no evidence.

10. On the contrary, the evidence of PW-5 shows that the deceased Sanjay Gupta was sitting alongwith the driver in the driver's cabin. It was PW-5 who was sitting in the rear carriage portion of the tempo. PW-2 Mrs.Manju Gupta has also said that the deceased was employed as a cleaner on the offending vehicle. She has clarified in the cross- examination that she has wrongly described the profession of her husband to be a shopkeeper by mistake.

11. It is true that the Tribunal disbelieved the version of the claimant on account of this contradiction in the claim petition and evidence by way of affidavit. However, I see no reason to disbelieve the claimant. PW-2 is obviously from a humble background who has lost her husband who was merely 21-22 years old. The testimony of PW-2 the wife of the deceased and PW-5 corraborate each other. Normally, it would be an employee who would sit in the cabin alongwith the driver. There is substance in the

version of PW-2 and PW-5 that the deceased was working as a cleaner and that is why he was made to sit inside the cabin alongwith the driver.

12. In my opinion the Tribunal has erroneously taken the deceased to be a gratuitous passenger.

13. In fact the onus was on the respondent insurance company to prove that the deceased was a gratuitous passenger. In the absence of any evidence led by the respondent the version of the claimant has to be believed. I hold that the deceased was not a gratitious passenger.

14. Accordingly, I reverse the order of the Tribunal and hold that respondent No.2/insurance company will be liable to pay the compensation amount.

15. Respondent No.2 may deposit the compensation amount in the Court alongwith interest @6% per annum from the date of filing of the claim petition till payment in court. 60%of the same may be released to appellant No.1 and 20% be released to appellants No.2 and 3 each.

16. Appeal stands disposed of accordingly.

(JAYANT NATH) JUDGE MAY 22, 2015 n