Icici Lombard General Insurance ... vs Adesh Sharma & Ors
2016 Latest Caselaw 2236 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                               Date of Decision: 21st March, 2016
+      MAC.APP. 418/2010

    ICICI LOMBARD GENERAL INSURANCE CO LTD..... Appellant
                  Through  Ms. Suman Bagga and Mr. Pankaj
                           Gupta, Advs.
                  versus
    ADESH SHARMA & ORS                   ..... Respondent
                  Through  None
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
                  JUDGMENT

R.K.GAUBA, J (ORAL):

1. Chander Prakash, then aged 48 years, retired from Indian Army where he had last served in the rank of subedar earning pension at ₹9,735/- per month at the relevant point of time, suffered injuries and died in the consequence on account of motor vehicular accident that occurred at about 7 PM on 04.04.2007 in the area of Kargil Chowk, Dwarka, New Delhi wherein two vehicles had collided against each other one being scooter bearing No.UP 13B 3120 (the scooter) and the other being Toyota Corolla car bearing registration No.HR 38L 2816 (the car). Whilst the scooter was driven by the deceased, the car was driven by Bhim Singh (the fifth respondent), it being owned by Kapil Aganpal (sixth respondent). The widow, children and mother (first to fourth respondents) preferred claim petition under Sections 166 and 140 of Motor Vehicles Act, 1988 (MV Act) on 10.08.2007 before the motor accident claims tribunal (tribunal) which registered it as MACT claim petition No.503/2008. Besides the driver and

owner of the car, the appellant insurance company (the insurer) were impleaded as respondents with allegations that the accident had occurred due to rash/negligent driving of the car.

2. During inquiry the claim petition was contested, inter alia, on the ground that there had been contributory negligence on the part of the scooterist (deceased). The tribunal after examining the evidence led on record, particularly the evidence of B. Gautam (PW2), the brother-in-law of the deceased and an eye witness, who was out on an evening stroll, and the record of the corresponding criminal case, which included site plan (page 189 of the tribunal's record), concluded that there had been contributory negligence on the part of the deceased to the extent of 25%. The tribunal assessed the compensation in the sum of ₹19,74,000/- but directed the insurance company to pay 75% of the said amount with interest at 9% per annum from the date of filing of the petition in favour of the first to fourth respondents (the claimants). The amount of compensation, thus awarded, included ₹1 lakh towards love & affection, ₹10,000/- each towards loss of consortium, funeral expenses and loss to estate, ₹20,000/- towards medicine and treatment and ₹18,24,000/- towards loss of dependency.

3. The insurance company, by appeal at hand, submits that in the facts and circumstances found, the contributory negligence on the part of the scooterist should have been assessed to the extent of 50%. It is also aggrieved with the computation of loss of dependency on the ground future prospects were wrongly added in the income from the private employer, after superannuation from Army and further that the pension could not have been added fully to the computation.

4. The question of negligence was considered by the tribunal thus :

"21. Petitioner in order to substantiate this issue had examined the eye witness, namely, Sh B Gautam. He narrated the sequence of events as they had taken place. This witness during the course of his cross examination has admitted the fact that deceased who was his brother in law, was driving his scooter on wrong side of the road.

22. I have perused the certified copies of the criminal record including the site plan prepared by the investigating officer during the course of investigations. I have considered the same in the light of the deposition of B. Gautam who appeared in the witness box as PW2. It is apparent on the basis of his deposition as well as site plan that accident had taken place at an intersection / crossing.

X X X

25. In the present case, on the basis of the deposition of PW2 as well as on perusal of the site plan, it is apparent that driver of the offending vehicle i.e. Car bearing registration no HR -38L- 2816 as well as deceased namely, Chander Prakash Sharma , both have violated the rules of the road which lead to the present accident.

26. Had the driver of the offending car, slowed down the speed of his vehicle while approaching the intersection than this accident could have been averted or in the alternative the impact could have been lessened to a considerable extent and the same might not have resulted in the death of Chander Prakash Sharma. On the other hand, had Chander Prakash Sharma, deceased would have driven his scooter on the correct side of the road the accident could have been avoided.

27. Having regards to the factual matrix which has come up on record on the basis of oral as well as documentary evidence, I am of the opinion that the present accident had taken place due to contributory negligence of respondent no.1 and that of

deceased. I assess the negligence on the part of deceased to be 25 per cent and on the part of the respondent no.1 , the driver of the offending vehicle as 75 per cent. Consequences of the same shall be adverted to while disposing off Issue No. 2."

5. On perusal of the tribunal's record, it is found that the site plan prepared by the investigating police officer does not make it clear as to the direction which the scooterist had taken. It is clear from the testimony of PW2 that even he was not aware as to from which direction the scooterist had approached the junction of roads where the collision took place. Mere statement of PW2 that the deceased himself was in the wrong lane cannot lead one to the conclusion that his guilt was equal to that of the car driver. It is noticeable that in the site plan the investigating officer has shown only one part of the carriage way (on which the deceased was presumably moving) to be open to traffic. If the deceased had indeed approached the junction from east to west, though he would be in the wrong lane, he would still be justified to an extent in taking the said route on account of blockade in the carriage way meant for the said direction.

6. Since no further inquiry was made by either side with regard to the exact route on which the scooterist was moving, with admission of PW2 that he was in the wrong lane, the assessment made by the tribunal as to the extent of contributory negligence does not deserve to be interfered with. The plea of the insurance company is, therefore, rejected.

7. The claimants had proved before the tribunal that the deceased, after retiring from Army service, was working for gain as an Assistant Manager in a private security agency. Though they could not prove the exact emoluments, which he was earning from the said private employment, the

tribunal assumed it to the extent of ₹3,900/-, it being wages of a skilled worker and added 50% towards future prospects. Having regard to the view taken in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and Reshma Kumari V. Madan Mohan (2013) 9 SCC 65, this was not correct.

8. Further, the addition of pension of ₹9,735/- to the loss of earnings was erroneous. As pointed out by the counsel for the insurance company, under the normal rules, the claimant widow would still be in receipt of family pension, as was admitted by her during her cross-examination. Since family pension is computed normally at 50% of the pension earned by the government servant, she would still be in receipt of an amount of ₹4,867/50 towards pension. Therefore, the loss of earnings on such count would be equivalent to the said amount rounded off to ₹4,868/- per month.

9. In view of the above, the income on which the loss of dependency is to be worked out must be calculated as (4,868 + 3,900) ₹8,768/-. After deducting 1/4th towards personal and living expenses, the loss of dependency comes to (8,768 x 3 ÷ 4) ₹6,576/-. On the multiplier of 13, the total loss of dependency is computed as (6,576 x 12 x 13) ₹10,25,856/-, rounded off to ₹10,26,000/-.

10. It is noted that the awards under the heads of loss of consortium, funeral expenses and loss to estate are unduly low. Following the view taken in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150, the award towards loss of consortium is increased to ₹1 lakh and under the other two heads to ₹25,000/- each. Adding the cost incurred towards medicines and treatment

(₹20,000/-) and award under the loss of love & affection at ₹1 lakh, the total compensation payable in the case comes to (10,26,000 + 1,00,000 + 1,00,000 + 25,000 + 25,000 + 20,000) ₹12,96,000/-. In view of the finding of contributory negligence to the extent of 25%, the claimants are held entitled to receive (12,96,000 x 3 ÷ 4) ₹9,72,000/-. Needless to add, the amount of ₹50,000 already paid under the no fault liability shall have to be deducted and the net amount shall be receivable with interest as levied by the tribunal.

11. By order dated 14.07.2010, the insurance company was directed to deposit the entire awarded amount within the period specified and out of said deposits 75% was allowed to be released to the claimants. The tribunal had apportioned the award by specifying the amounts that would fall to the share of each claimant. Since the compensation has been reduced, it is directed that no further amount shall be payable to any of the claimants except the widow (the first respondent herein).

12. The Registrar General shall calculate the amount which remains to be paid to the claimants in terms of the award modified as above and release the entire balance with proportionate interest to the first respondent, refunding the excess to the insurance company with statutory deposit, if any.

13. The appeal is disposed of in above terms.

R.K. GAUBA (JUDGE) MARCH 21, 2016/VLD