Delhi High Court
Bajaj Allianz General vs Narender Singh & Ors. on 20 May, 2016
$~26 & 5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 20.05.2016
+ MAC.APP. 1208/2012
BAJAJ ALLIANZ GENERAL ..... Appellant
Through Ms. Suman Bagga and Mr. Pankaj
Gupta, Advs.
versus
NARENDER SINGH & ORS.
..... Respondent
Through Mr. N K Jha, Adv. for R-1 & 2
Mr. O P Mannie, Adv. for R-3 to 6
+ MAC.APP. 245/2013
MEENAKSHI RANI & ORS.
..... Appellant
Through Mr. O P Mannie, Adv.
versus
NARENDER SINGH & ORS.
..... Respondent
Through Ms. Suman Bagga and Mr. Pankaj
Gupta, Advs. for insurance
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. On 02.04.2010, Uday Chand, aged 34 years, employed as constable in
Delhi Police was traveling as a passenger in car bearing No.DL 8CS 5774
(the car) driven by the first respondent at G T Road, Tiraha, Railway station,
Police station Kotwali Chowki, Kirana Mandi, Ghaziabad, U.P. Sometime
around 11.25 PM, there was a collision between the car and truck statedly
bearing registration No.HR 38 1778 (the truck), in the consequence of which
Uday Chand died. His dependent family members (parents), (appellants in
MAC.APP.No.245/2013) instituted accident claim case (MAC petition
No.239/10) on 21.05.2010 seeking compensation under Sections 140 & 166
of Motor Vehicles Act, 1988 (MV Act). In the said proceedings, Narender
Singh (the car driver), Parmal Singh (the owner of the car) and Bajaj Allianz
General Insurance Co. Ltd. (appellant in MAC.APP.No.1208/2012) were
impleaded as party respondents, the latter (the insurer) concededly having
issued an insurance policy covering third party risk in respect of the car for
the period in question. The claimants founded their case on the averments
that the accident had occurred due to rash driving of the car.
2. The tribunal held inquiry and, by judgment dated 31.08.2012, upheld
the case of the claimants about the accident having occurred due to negligent
driving of the car and thereupon awarded compensation in the total sum of
`26,71,600/-. The insurer which was found liable to indemnify was asked
by the tribunal to satisfy the award with interest at 7.5% per annum from the
date of filing till realization.
3. The insurer, by its appeal (MAC.APP.No.1208/2012), has questioned
the finding recorded by the tribunal about negligence on the part of the car
driver. Its contention is that the story of negligence of the car driver has
been fabricated as the first respondent while lodging the first information
report (FIR) No.228/10 in police station Ghaziabad Kotwali (certified copy
at page 165 of the tribunal's record) had attributed negligence to the truck
driver stating the said vehicle had come on the wrong side. It is the
submission of the insurer in appeal that the tribunal fell into error by
accepting the contrary version given by Mohan Pal (PW3), described as a
vendor present at the scene of the occurrence.
4. Per contra, the claimants by their appeal (MAC.APP.No.245/2013)
have submitted that in calculating the loss of dependency, the tribunal
wrongly excluded `2,032/- receivable by the deceased as transport
allowance on regular basis and further that the awards under the non-
pecuniary heads of damages and rate of interest are inadequate. It is also
their submission that though the tribunal added the element of future
prospects, it factored in only 30% of prospective increase, ignoring the
dictum in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation &
Anr., (2009) 6 SCC 121 that the same should have been to the extent of
50%.
5. Having heard both sides, and upon perusal of the record, this Court
finds that there is no good reason why the conclusion reached by the tribunal
on the issue of negligence should be disturbed. It may be that in the FIR, the
first respondent, the car driver, had stated facts attributing negligence solely
to the truck driver. But, it has to be borne in mind that in a collision that
seemingly was head-on with both vehicles coming from opposite directions,
the conduct of both drivers was under scrutiny. Since the truck could not be
found immediately at the spot, the version of car driver was available
immediately to the police which adopted the same for purposes of
registering the case. Merely because that was the version coming in the FIR,
it cannot become the conclusive proof. The tribunal has set out sound
reasons for accepting the testimony of PW3. Though the site plan shows
that the truck was in a wrong lane, given the time of the night when the
accident occurred, it appears that truck was in the process of overtaking
some other vehicle. Overtaking of other vehicles on road by itself may not
indicate negligent driving. The need for overtaking may arise given the
urgency of the journey undertaken and the volume of traffic on the road.
But it must be added that the driver of a vehicle in making an effort to
overtake must apply due caution and care about the safety of other road
users. The tribunal has noted that the car driver would also have seen the
oncoming truck in the wrong lane in the effort of overtaking and thus was
also expected to apply caution and give way for which there was enough
space on the left lane. The fact that the two vehicles collided against each
other head-on itself is sufficient to infer that both drivers were negligent.
Given this state of affairs, for purposes of claim on account of death of Uday
Chand, the existence of contributory negligence on the part of the drivers of
both the vehicles by itself is sufficient to reject the contention of the
insurance company.
6. There is merit in the contention of the claimants that the amount of
2,032/- could not have been excluded. It was part of the regular emoluments
earned by the deceased and would be resulting in corresponding savings
and, thus, the net salary is recalculated as (16,437 + 2,032) Rs.18,469/-. The
annual income, thus, comes to (18,469 x 12) Rs.2,21,628/- from which the
income tax liability of Rs.10,642/- is deducted, thereby giving the net
income of (2,21,628 - 10,642) Rs.2,10,986/-. Adding the element of 50%
future prospects and deducting 1/3rd towards personal & living expenses,
applying the multiplier of 16, the total dependency loss comes to (2,10,986 x
150 ÷ 100 x 2 ÷ 3 x 16) Rs.33,75,776/- rounded off to Rs.33,76,000/-.
7. Following the view taken in Rajesh & Ors. v. Rajbir Singh & Ors.,
(2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150,
compensation in the sum of Rs.1 lakh each on account of loss of love &
affection and loss of consortium and Rs.25,000/- each towards loss of estate
and funeral expense are added. Thus, the total compensation payable in the
case comes to (33,76,000 + 2,50,000) Rs.36,26,000/-.
8. Following the consistent view taken by this Court [see judgment dated
22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta
Devi & Ors.], the rate of interest is increased to 9% per annum from the date
of filing of the petition till realization.
9. The award is modified accordingly.
10. It is noted that the tribunal had apportioned the award by specifying
the amounts payable to the different claimants. By order dated 23.11.2012,
(in MAC.APP.No.1208/2012) the insurance company had been directed to
deposit 50% of the awarded amount with up-to-date interest, which was to
be kept in fixed deposit receipt, but released to the claimants by order dated
22.04.2013. The insurance company is directed to now deposit the balance
of its liability under the modified award with the tribunal within 30 days of
this judgment making it available to be released to the claimants. Given the
apportionment already granted in favour of other claimants, it is directed
that the entire enhanced portion of the award including on account of
increase in the rate of interest shall fall to the share of the first claimant
(Meenakshi Rani) (widow).
11. Statutory amount, if paid, by the insurance company shall be
refunded.
12. Both the appeals are disposed of in above terms.
(R.K. GAUBA)
JUDGE
MAY 20, 2016
VLD
