Delhi High Court
New India Assurance Co. Ltd. vs B.M. Anand And Ors. on 3 March, 2016
$~ R-32 to 36A
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:3rd March, 2016
+ MAC.APP. 393/2007
NEW INDIA ASSURANCE CO. LTD. ...... Appellant
Through: Nemo.
versus
B.M. ANAND AND ORS. ..... Respondents
Through: Mr. N S Dalal, Adv.
+ MAC.APP. 395/2007
NEW INDIA ASSURANCE CO. LTD. ...... Appellant
Through: Nemo
versus
B.M. ANAND AND ORS. ..... Respondents
Through: Mr. N S Dalal, Adv.
+ MAC.APP. 199/2016
BRIJ MOHAN ANAND AND ORS. ...... Appellant
Through: Mr. N S Dalal, Adv.
versus
NEW INDIA ASSURANCE CO. LTD. ..... Respondents
Through: Nemo
+ MAC.APP. 396/2007
NEW INDIA ASSURANCE CO. LTD. ...... Appellant
Through: Nemo
MAC APP. Nos.393/2007 & conn. Page 1 of 14
versus
SHILPA ANAND AND ANR. ..... Respondents
Through: Mr. N S Dalal, Adv.
+ MAC.APP. 397/2007
NEW INDIA ASSURANCE CO. LTD. ...... Appellant
Through: Nemo
versus
B.M. ANAND AND ORS. ..... Respondents
Through: Mr. N S Dalal, Adv.
+ MAC.APP. 198/2016
BRIJ MOHAN ANAND ...... Appellant
Through: Mr. N S Dalal, Adv.
versus
NEW INDIA ASSURANCE CO. LTD. ..... Respondents
Through: Nemo
+ MAC.APP. 398/2007
NEW INDIA ASSURANCE CO. LTD. ...... Appellant
Through: Nemo
versus
B.M. ANAND AND ORS. ..... Respondents
Through: Mr. N S Dalal, Adv.
+ MAC.APP. 200/2016
BRIJ MOHAN ANAND AND ORS. ...... Appellant
Through: Mr. N S Dalal, Adv.
MAC APP. Nos.393/2007 & conn. Page 2 of 14
versus
NEW INDIA ASSURANCE CO. LTD. ..... Respondents
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. All these eight appeals arise out of judgment of Motor Accident
Claims Tribunal (the Tribunal) rendered on 29.03.2007 whereby six claim
petitions presented under Sections 166 and 140 of Motor Vehicles Act, 1988
(MV Act) were decided and various amounts of compensation awarded
fastening the liability on New India Assurance company Ltd. (the insurer) of
Tata Sumo car bearing registration No.DL 6CA 8049 (hereinafter referred to
as "the car").
2. On 23.08.1999, the car, indisputably driven by Subhash Chand was
going from Delhi towards Balaji via Mathura (UP). It met with an accident
at about 11 PM in the area of village Janak within the jurisdiction of
Goverdhan, District Mathura (UP) when there was a collision between the
said vehicle and Mahindra Jeep registered as RJ 34C 0112 (hereinafter
referred to as "the jeep") coming from opposite direction. In the car, six
members of a family were traveling as passengers, they including Brij
Mohan Anand, his wife Suman Anand, his father B R Anand, his mother
Ved Rani and two daughters named Gunjan and Shilpa. As a result of the
collision, three members of the family viz. Suman Anand, B R Anand and
Ved Rani died. The other members of the family viz. B M Anand, Gunjan
and Shilpa suffered injuries. Six claim petitions were brought, three by the
injured persons and the other for compensation on account of deaths of
Suman Anand, B R Anand and Ved Rani.
3. The claim petitions respecting the deaths of Suman Anand, B R
Anand and Ved Rani were registered by the Tribunal as suit Nos.205/2003,
206/2003 and 204/2003. Similarly, the claim petitions of B M Anand,
Gunjan and Shilpa were registered as suit Nos.207/2003, 208/2003 and
209/2003.
4. The claimants, in the above mentioned cases, impleaded Subhash
Chand, the driver of the car as the first respondent alleging that he was the
principal tort-feasor as the accident had occurred on account of
rash/negligent driving of the car by him. The claimants also impleaded
Kartar Singh Mann (the second respondent) he being the owner of the car.
The insurer was impleaded as party respondent (third respondent) in each of
the said claim cases.
5. All the six claim cases were inquired into together. Whilst the driver
(Subhash Chand) and the owner (Kartar Singh Mann) contested denying the
allegations of negligence, the insurance company contested, inter alia,
taking up the plea that the cases had been fabricated as there was neither any
involvement of the car nor any negligence on the part of its driver. Its
contention was that the claim petitions had been filed on 31.05.2001
belatedly after it had been realized that the jeep which was involved in the
accident was not insured against third party risk.
6. The Tribunal, during the course of inquiry, gave opportunity to all
sides to lead evidence. While the claimants examined themselves to affirm
the facts relating to the accident primarily through the word of B M Anand
(PW1), Gunjan (PW4) and Shilpa (PW5), they also relied on the evidence of
record of local police which had registered a first information report (FIR)
No.106/1999 (PW6/1) in police station Goverdhan on 23.08.1999 on the
statement of Anurag Anand (PW3) son of B R Anand and one of the
claimants in the claim arising out of his death and that of Ved Rani.
7. The respondent driver, on the other hand, examined himself as R1W1
and the owner of the car examined himself as R2W1, both also relying on
the testimony of Padam Singh (R1W2), an official from the office of motor
licensing officer, for proving that the driver of the car held a valid and
effective driving license at the time of the accident.
8. The Tribunal by a common judgment passed on 29.03.2007 rejected
the contentions of the insurance company about there being no involvement
of the car or there being no negligence on the part of its driver. It awarded
compensation in the sum of ₹ 3,55,000/- in the case of death of Suman
Anand (suit No.205/2003); the sum of ₹ 2,30,000/- as compensation in the
case of death of B R Anand (suit No.206/2003); and the sum of ₹ 95,000/-
on account of death of Ved Rani (suit No.204/2003). For the injuries
suffered by B M Anand he was compensated in the sum of ₹ 1,65,475/- (suit
No.207/2003). For the injuries suffered by Gunjan an amount of ₹ 10,000/-
was awarded (208/2003) while in the case of injuries of Shilpa an amount of
₹ 20,000/- was awarded (suit No.209/2003).
9. The Tribunal directed the insurance company to pay the above-
mentioned amounts of compensation with interest from the date of filing of
the petitions till realisation.
10. The insurance company did not challenge the award in the case of
injuries of Gunjan (suit No.208/2003). It, however, brought appeals
questioning the award of compensation in the other five claim cases, its
appeals in the case of deaths of Suman Anand, B R Anand and Ved Rani
having been registered as MAC.APP.No.393/2007, MAC.APP.No.398/2007
and MAC.APP.No.395/2007 respectively. Similarly, the insurance
company filed appeals questioning the award of compensation for injuries
suffered by B M Anand and Shilpa by MAC.APP.Nos.397/2007 and
396/2007. While resisting the appeals of the insurance company, B M
Anand and the legal heirs of Suman Anand and B.R. Anand have come up
with cross-objections seeking enhancement of compensation in each of the
said cases, the said cross objections having since been registered as
MAC.APP.No.198/2016, 200/2016 and 199/2016 respectively. It may be
added that the cross-objections (now appeals) in the last two said matters
were wrongly presented with reference to MAC Appeal nos. 398/07 and
395/07 respectively, but are being considered in cases to which they actually
relate.
11. Having heard arguments, the issue of involvement of the car, and
negligence on the part of its driver, as raised by the insurance company in its
appeals, are taken up first.
12. These matters were heard in part on 2nd March, 2016, when the
counsel for the insurance company, Mr. D.K. Sharma, was present and made
his submissions. When these matters have been taken up today no one has
appeared on behalf of the said party.
13. It is the submission of the insurance company that it was the driver of
the jeep who was at fault inasmuch as the said vehicle had come at break
neck speed from the opposite direction causing a head-on collision against
the car. It is pointed out that this was the version of Anurag Anand (PW3)
on basis of which the FIR (PW6/1) was registered by the police on
23.08.1999. It is pointed out from the case diary of the investigation of the
said FIR (Ex.PW6/2) that this was the stand taken by surviving members of
the family (the claimants) during their respective statements under Section
161 of the Code of Civil Procedure, 1973 (Cr.P.C.). The learned counsel
referred to the entries in the case diary indicating that the post-mortem
examination of the dead bodies of Suman Anand, B R Anand and Ved Rani
was dispensed with, at the request of Anurag Anand (PW3). He referred to
the copy of the site plan (page 233 of the Tribunal's record) to show that the
accident had occurred due to rash/negligent driving of the jeep by its driver.
He also referred to the statements of the witnesses examined by the
claimants including PW1 wherein it was conceded that the driver of the jeep
was also at fault though the car driver had at some stage also been negligent
in that he had been driving at rash speed but had been instructed to slow
down. The counsel for the insurance company argued that a case of
composite negligence was thus clearly brought out from the material on
record and, therefore, the theory on the basis of which the petitions were
filed, 21 months after the accident, is an afterthought.
14. It is trite that in cases relating to compensation for injuries or damage
suffered in a motor vehicular accident, the standard of proof of the fault
cannot be the same as that applied in criminal jurisprudence. Whilst it is
correct that on the criminal charge in the corresponding case brought before
the criminal court the culpability of the driver is required to be proved
beyond all reasonable doubts, in the accident claim brought before the
tribunal, it being essentially a case of liability in torts, the evidence adduced
to prove the fault of the driver of the offending vehicle is to be examined on
the principle of preponderance of probabilities. In such cases direct
evidence may not always be available. This is where the maxim of res ipsa
loquitur comes in. The circumstances attendant upon the events leading to
the accident may possibly be demonstrated through evidence gathered by the
police officer during investigation for appropriate conclusions to be reached.
Thus, if from the circumstances the guilt on the part of the driver may be
inferred, the burden shifts on to the driver to explain the said circumstances.
15. Having given considered thoughts to the submissions made by the
insurance company, this Court finds no reasons why the plea of composite
negligence should be accepted or it be held that the accident had occurred
not because of any fault on the part of the car driver but for reasons wholly
attributable to the driver of the jeep. The testimony of PW3 cannot be of
any consequence. He was not member of the party which was travelling in
the car. It is admitted case of the insurance company that he had gone from
Delhi to attend on the members of his family who had suffered the accident,
with three of them having died. There is nothing to be read into the requests
that the post mortem examination be dispensed with. The said requests
could not conceivably have been made with any reasons to hide any facts.
The insurance company has not come up with any theory, much less
evidence to show that the deaths had occurred for reasons other than injuries
suffered in the motor vehicular accident.
16. The evidence of PW1, PW4 and PW5 is consistent. Even if a wrong
report was made by PW3 attributing the entire fault to the jeep driver (which
for reasons mentioned above cannot come in the way), the testimony of
these witnesses deserves to be accepted. After all, they were traveling in the
car and had watched over the conduct of its driver. They clearly reveal that
the car driver was also moving the vehicle at rash speed. It may be that
there was a head-on collision. But this fact, by itself, does not mean that the
theory of composite negligence or contributory negligence will have to be
accepted. For this, the party so alleging must show as to how in the head-on
collision, it was the driver of the jeep who only was at fault and not that of
the car. The site plan (at page 233 of the Tribunal's record) cannot be
referred as no witness was called upon to prove it. Similarly, the statements
under section 161 Cr.P.C. forming part of the case diary also cannot be acted
upon as they are not substantive evidence, none of the witnesses of the
claimants having been confronted with the said documents.
17. On the foregoing facts, and in the circumstances, the argument of the
insurance company about composite or contributory negligence or want of
negligence on the part of car driver, is rejected.
MAC.APP.Nos.393/2007 & MAC APP. 200/2016
18. These appeals relate to the award (in suit No. 205/2003) relating to
the death of Suman Anand. The evidence adduced before the tribunal, as
summarized in the impugned judgment shows that the deceased was 45
years old and her income-tax return showed her income to be in the region
of ₹ 65,000/- per annum from publishing business. The tribunal, however,
did not accept the said evidence for the reason income-tax return had been
filed after her death. It assumed her income notionally at ₹ 3,000/- per
month and, on that basis, computed the loss of estate to the extent of 50%
and after deducting 1/3rd towards personal expenses computed the loss of
dependency at ₹ 3,30,000/-. After adding ₹ 5,000/- towards cremation
charges and ₹ 20,000/- towards loss of consortium and loss of love and
affection, the total compensation is calculated at ₹ 3,55,000/-.
19. The insurance company in its appeal vaguely stated that the
compensation has been assessed on the higher side. On the other hand, by
their independent appeal (cross-objections), it is argued by the claimants that
the income-tax return could not have been rejected as proof of income, since
it had to be filed only after it was due. It is further argued that the multiplier
of 11 is incorrect because as per the decision in Sarla Verma (Smt.) & O₹ v.
Delhi Transport Corporation & Anr., (2009) 6 SCC 121, appropriate
multiplier would have been 14.
20. It is noted that the tribunal has added 50% towards future prospects
which was not permissible in the given facts and circumstances where the
income was being assessed notionally. Thus, the compensation awarded in
the case is recomputed on the notional income of ₹ 36,000/- per annum.
1/3rd is deducted and annual loss of dependency comes to ₹ 24,000/-. In this
view, the total loss of dependency is calculated as (₹ 24,000 x 14) ₹
3,36,000/-.
21. The tribunal granted a composite sum of ₹ 20,000/- towards loss of
consortium and loss of love and affection. This was not correct. Following
the view taken in FAO 102/2001 titled as Madhu Marwaha & Anr. Vs. Dal
Chand & Anr. Dated 1st February, 2016 award of ₹ 50,000/- each towards
loss of consortium and loss of love & affection is added besides funeral
charges enhanced to ₹ 10,000/-. In this view, the total compensation
payable in the case of death of Suman Anand is calculated as (3,36,000 +
50,000+50,000+10,000) ₹4,46,000/-. The compensation is enhanced
accordingly.
MAC.APP.Nos.398/2007 & 199/2016
22. These appeals relate to award (in suit No.206/2003) on account of
death of B R Anand. The claim was filed by his sons B R Anand and
Anurag Anand each of them having appeared in the evidence as PW1 and
PW3 respectively. As per the evidence B R Anand was 73 years old,
earning his livelihood as an author, his income being in the region of
`90,000/- per annum as reflected by documents relating to income received
from M/s Aster Educational Public Pvt. Ltd. The Tribunal calculated the loss
to the estate to the extent of `45,000/- and applying the multiplier of 5
arrived at loss of dependency in the sum of `2,25,000/-, adding `5,000/-
towards funeral charges. Total amount awarded was ₹ 2,30,000/-.
23. The contention of the insurance company in appeal is that there was
no substantive evidence led about income of the deceased B R Anand. It is
pointed out that the income tax return relied upon was filed after his death.
Be that as it may, PW3 also proved that the fact that the deceased was an
author of various books, he having produced sixteen of such publications
(collectively Ex.3/1). Having regard to the evidence of PW1 and PW2
affirming the above mentioned facts, which were not refuted by any cross-
examination, the contention of the insurance company questioning the
calculation of the income cannot be accepted. The appeal
(MAC.APP.No.398/2007) against the award (in suit No.206/2003) is liable
to be dismissed.
24. By cross objection (MAC.APP.No.199/2016), the claimants contend
that non-pecuniary heads of damages were not awarded. It is pointed out
that no award has been made on account of loss of love & affection. Having
regard to the date of death, an award in the sum of `50,000/- towards loss of
love & affection deserves to be added. Thus, the award in the case of death
of B R Anand is enhanced by ` 50,000/-.
MAC.APP.Nos.395/2007
25. In this appeal, the insurance company vaguely stated that the
compensation awarded (in suit No.204/2003) concerning the death of Ved
Rani is on the higher side and deserves to be reduced. The tribunal assessed
the income of the deceased notionally at ₹ 36,000/- and calculated the loss
of estate to the extent of 50% and applying the multiplier of 5 (the deceased
being 67 years old) computing the compensation at ₹ 90,000/- adding ₹
5,000/- towards funeral expenses. The tribunal has set out sound reasons to
arrive at the amount of ₹ 95,000/- payable as compensation which does not
need to be interfered with. Therefore, the appeal is liable to be dismissed.
MAC.APP.Nos.397/2007 & 198/2016
26. These appeals relate to compensation on account of injuries suffered
by B.M. Anand. The tribunal calculated the compensation in this case as
under:-
"25. In this suit the petitioner Sh. B. M. Anand has claimed
compensation for the injuries suffered by him. He suffered from
fracture of his pelvic bones. His medical expenses has been
evidenced through his treatment record and his bills for ₹
35,475/- which have been filed. He is, therefore, awarded the
same. In addition, he is awarded a sum of ₹ 30,000/- towards
pain and suffering, ₹ 10,000/- towards special diet, ₹ 5,000/-
towards conveyance, ₹ 5,000/- towards attendant and other
charges and ₹ 10,000/- towards loss of amenities and
expectation of life. The petitioner has also claimed loss of
income. His IT returns filed after the accident reflect his
income in his business from running a publication house and
not from any salary. He is, therefore, being awarded a sum of ₹
20,000/- as notional loss of income for the period of
recuperation.
26. The petitioner has stated that he has suffered from
permanent disability which has been opined at 5% (five per cent
of left lower limb. Keeping the nature of injuries in view, he is
awarded compensation for the disability suffered by him and its
long term repercussions at ₹ 50,000/- on a lumpsum basis.
The total compensation awarded is ₹ 1,65,475/-."
27. The insurance company in its appeal questions the compensation
again on vague plea that it was on the higher side. By his cross-appeal, the
claimant has submitted that that he has not been awarded any compensation
for loss of future income in account of permanent disability which has been
assessed to the extent of 5% of the left lower limb. Having regard to the
extent of disability and further the nature of avocation in which he was
engaged, the lumpsum award of ₹ 50,000/- towards disability, along with
other damages, cannot be grudged.
28. Therefore, both these appeals are without substance and are liable to
be dismissed.
MAC.APP.Nos.396/2007
29. The insurance company in its appeal did not raise any meaningful
issue as it, again vaguely, submitted that the compensation awarded is on the
higher side. The appeal is without substance and is liable to be dismissed.
30. With the awards in the cases of death of B.R. Anand and Suman
Anand modified as above, the appeals stand disposed of. The statutory
deposits, if made, be refunded.
R.K. GAUBA
(JUDGE)
MARCH 03, 2016
VLD/nk
