Delhi High Court
Oriental Insurance Co Ltd vs Jyoti & Ors on 29 February, 2016
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 29th February, 2016
+ MAC.APP. 1006/2013
ORIENTAL INSURANCE CO LTD ..... Appellant
Through: Mr. L. K. Tyagi, Adv.
versus
JYOTI & ORS ..... Respondents
Through: Mr. Arun Nischal, Adv. for R-1 to R-
4.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. On 03.09.2009 at about 07:30 PM at Gopal Pur Road crossing of
Rohtak Road within the jurisdiction of police station Kharkhoda, District
Sonepat (Haryana), an accident occurred involving two wheeler scooter
bearing registration no.DL-8S-3126 driven by Virender Singh and a tractor-
trolley described as vehicle bearing no.HR-10L-3264 resulting in injuries
being suffered by Virender Singh who died in the consequence. His widow,
minor daughter and parents (first to fourth respondents) filed a claim petition
under Sections 166 & 140 of the Motor Vehicles Act, 1988 (the MV Act)
before the motor accident claims tribunal (the tribunal) where it was
registered as MACT case no.230/2009/2013. The fifth and sixth respondent
herein were impleaded on the grounds that they are the owner and driver of
the tractor-trolley while the appellant herein was impleaded as a party
respondent since the tractor was insured with it against third party risk for
the period in question.
2. The tribunal, by judgment dated 27.09.2013, awarded compensation
in the sum of `18,69,001/- with interest at the rate of nine percent (9%) per
annum from the date of filing the petition till realization.
3. The insurance company has come up in appeal raising the issue of
involvement of the trolley which was insured with it, contending that the
accident had occurred, per the evidence adduced, only on account of wrong
parking of the trolley in the middle of the road and that in absence of
evidence showing a connection between the tractor, which was subject
matter of insurance and the trolley, which was not, the insurance company
cannot be called upon to indemnify.
4. The insurance company also argues that the income of the deceased
has been wrongly assumed to be `11,000/- for working out the loss of
dependency on the basis of salary certificates Ex.PW1/A & Ex.PW1/B
which were not proved in accordance with law. It is further submitted that
the award of `50,000/- on account of loss of gratuitous services was wholly
improper as there is no precedent for such award being granted in cases of
death. The insurance company further questions the multiplier of 18 which
was adopted in the case of death of a 27 years old person.
5. The argument about the non-involvement of the tractor in the fatal
accident must be rejected. The tribunal has taken an appropriate view on the
matter resting its conclusion on the basis of evidence of the claimant and
additionally by reliance on the evidence gathered during the investigation of
the first information report (FIR) no.352/2009 which had been registered by
the local police for offences punishable under Sections 283/337/304-A of
Indian Penal Code, 1860 (IPC). The tribunal has noted that the trolley is
shown by the said material to have been parked in the middle of the road
without any indication and that the accident had occurred on the night of
03.09.2009 at 07:30 PM at Rohtak Road, Gopalpur road crossing, wherein
the scooterist was taken by surprise on account of stationary trolley coming
in his way. It is noted that in the written statement jointly filed by the owner
and driver of the tractor-trolley, they did not dispute the connection between
the trolley of the tractor which was insured with the appellant/insurance
company. They rather themselves pleaded that the tractor-trolley in question
was at the scene of the accident on there being need to take out the wheel of
the trolley for purpose of repairs. Though it was claimed on their behalf that
the trolley was parked on the side of the road, the evidence accepted by the
tribunal shows otherwise.
6. In above facts and circumstances, the finding of the tribunal that the
accident had occurred due to negligence on the part of the driver of the
tractor with which trolley would have moved to the place of occurrence
must be upheld.
7. There is substance in the contentions of the insurance company that
the income of the deceased has been wrongly assumed to be `11,000/- per
month without salary certificates Ex.PW1/A & Ex.PW1/B being strictly
proved. The multiplier was also wrongly adopted in as much as, per the
dictum in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation &
Anr., (2009) 6 SCC 121, appropriate multiplier would have been 17. The
award of `50,000/- on account of loss of gratuitous services was also
impermissible in case of death where the loss of dependency was worked
out on the basis of income of the deceased.
8. Faced with the above situation, the learned counsel for claimants
submitted, that the claimants may be given fresh opportunity before the
tribunal to prove the income of the deceased in the nature of salary given by
the housing society at Vishakha Enclave, Pitampura, Delhi and by Spring
Field School Pitampura, Delhi where he was working as part time employee.
He submitted that the appeal of the insurance company may be allowed and
the impugned award of compensation may be set aside but the matter
remitted for further inquiry in above nature. The learned counsel for the
appellant/insurance company submitted no objection.
9. The appeal is allowed and the impugned judgment is set aside to the
extent it calculated and awarded the compensation to the claimant. The
matter to that extent is remitted for further inquiry to the tribunal during
which the claimant will be entitled to lead additional evidence. Needless to
add, the opposite parties will also be entitled to lead evidence in rebuttal.
10. The parties shall appear before the tribunal on 21st April, 2016.
11. By order dated 06.11.2013, the tribunal was directed to release sixty
percent (60%) of the awarded amount in favour of the claimants and keep
the balance in the form of fixed deposit receipt with UCO bank Delhi High
Court branch, New Delhi for six months, to be renewed periodically. The
amount thus released earlier shall be subject to adjustment against the award
of compensation that would be passed on completion of the further inquiry
ordered as above. The balance lying in UCO Bank Delhi High Court branch
New Delhi, shall presently be refunded to the insurance company alongwith
statutory deposit, if made.
12. The appeal stands disposed of above terms.
R.K. GAUBA
(JUDGE)
FEBRUARY 29, 2016
ssc
