Sanjay Aggarwal And Ors. vs Parkash And Ors.
2016 Latest Caselaw 3818 Del

$~R-99

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       Date of Decision: 20.05.2016
+      MAC.APP. 702/2007 & CM No.17349/2008

       SANJAY AGGARWAL AND ORS.
                                                                     ..... Appellant
                          Through       None

                          versus

       PARKASH AND ORS.
                                                                ..... Respondent
                          Through      None
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
                          JUDGMENT

R.K.GAUBA, J (ORAL):

1. On 29.04.2001, Sanjay Aggarwal (the first appellant) was driving Maruti Zen car bearing registration No.DL 2CN 1 4283 (the car) from Delhi to Shikarpur, Haryana. When the car had reached the area of Islampur, it was involved in a head-on collision with Maruti van bearing registration No.HR 26H 8448 (the van). Besides Sanjay Aggarwal at the steering wheel, his father Ram Niwas, mother Sharda Aggarwal and other members of the family including Roopa Aggarwal, Ashika Aggarwal and Pushp Aggarwal were also travelling in the car. Due to collision all of them suffered injuries and Ram Niwas died in the consequence. Six accident claim cases (MACT case Nos.171-176/04/02) came to be filed on 29.05.2002 seeking compensation under Sections 166 & 140 of Motor Vehicles Act, 1988 (MV

Act); one (MACT 172/04/02) on account of death of Ram Niwas Aggarwal and the others for injuries suffered by the abovesaid persons. In all these cases, the first and second respondents herein were impleaded on the averments that they are the driver and owner respectively of the van, in addition to the third respondent, it concededly having issued an insurance policy against third party risk in respect of the said vehicle. It was alleged that the accident had occurred due to negligent driving of the van by the first respondent. The cases were attested.

2. All the six claim cases were consolidated and a common inquiry was held in the course of which, amongst others, Sanjay Aggarwal (PW2) and Prakash (R1W1) appeared in evidence, being the drivers of the car and the van respectively, each of them attributing blame on to the other side. The tribunal assessed the evidence thus adduced and concluded that both drivers were to share the blame equally and thus held it to be a case of contributory negligence apportioning the responsibility to the extent of 50% on each side.

3. By the impugned judgment passed on 25.07.2007, the tribunal awarded compensation in the sum of Rs.8,13,334/- on account of death of Ram Niwas Aggarwal. It also assessed the compensation payable for the injuries suffered by Sanjay Aggarwal to be in the sum of Rs.3,07,436/-, for injuries suffered by Roopa Aggawal in the sum of Rs.1 lakh, for injuries suffered by Ashika Aggarwal in the sum of Rs.10,000/- and for injuries suffered by Sharda Aggarwal in the sum of Rs.3 lakhs. The tribunal was not impressed with regard to the claim about injuries statedly suffered by Master Pushp and thus declined to grant any compensation in his favour. In each of these cases, the insurer of the van was called upon to pay the compensation

to the extent of 50% on account of the element of contributory negligence, with interest at 7.5% per annum from the date of filing of the petition till realization.

4. This common appeal was filed by the claimants challenging the judgment of the tribunal questioning primarily the finding returned about contributory negligence submitting that such conclusion could not have been arrived at. The claimants also contended in the appeal that the awards of compensation granted are inadequate.

5. The appeal was admitted and directed to be shown in the regular list by order dated 05.05.2009. Thereafter, whenever the matter has been taken up, the claimants would generally not appear. It is seen that the appeal was even referred for amicable settlement before Lok Adalat but the claimants did not show any interest as on some of the dates they did not even appear. Thereafter, whenever the appeal is taken up, the claimants have not appeared either in person or through counsel. The appeal being the oldest appeal on board of this Court, there is no reason why it should be deferred yet again.

6. Having perused the record of the tribunal, this Court finds that the conclusion reached by the tribunal on the question of contributory negligence cannot be questioned. Both PW2 and R1W1, the drivers of the car and the van have narrated facts attributing entire fault on to the driver of the opposite side. The evidence clearly shows that both the vehicles had approached the scene from opposite directions. Each vehicle was apparently moving at breakneck and uncontrollable speed. Since the two vehicles had collided head-on with each other, the responsibility for the collision in this case will have to be shared by the drivers of both sides. Thus, the finding

returned by the tribunal that Sanjay Aggarwal, the first appellant (claimant) was also guilty of contributory negligence to the extent of 50%, does not call for any interference.

7. It must however be added that the effect of the above finding could not have adversely impacted the claim for compensation of persons other than Sanjay Aggarwal. For present purposes, they were, after all, third parties. In these circumstances, it is held that though finding of contributory negligence on the part of the car driver (Sanjay Aggarwal) is upheld, the compensation payable on account of his injuries only will be subjected to 50% reduction, the insurer in all other cases being liable to pay the compensation awardable in their respective favour in entirety.

8. In the claim case on account of death of Ram Niwas Aggarwal, it was proved that he was 50 years old at the time of the accident. The tribunal adopted the multiplier of 11 to calculate the loss of dependency. Per the dictum in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, this was incorrect as the multiplier of 13 should have been applied. It is noted that the tribunal had assessed the income of the deceased at `1 lakh per annum, on the basis of income tax returns (ITRs), for assessment years 1999-2000 and 2000-2001. The evidence on record shows that the income declared for the said two assessment years was in the sum of `77,091/- and `77,743/- respectively. Having regard to this fact, the only correction required with regard to the loss of dependency is the application of proper multiplier. After deducting 1/3rd towards personal & living expenses, the loss of dependency is recalculated as (1,00,000 x 2 ÷ 3 x

13) `8,66,666/-, rounded off to `8,67,000/-.

9. Having regard to the date of death, following the view taken by this court in Madhu Marwaha & Anr vs. Dal Chand & Anr., FAO 102/2001, decided on 01.02.2016, which is referred by the counsel for the claimants, the non-pecuniary damages in the sum of Rs.50,000/- each towards loss of consortium and loss of love and affection and Rs.10,000/- each towards funeral expenses and loss to estate are added, besides `50,000/- computed by the tribunal as medical expenses. Thus, the total compensation for death of Ram Niwas Aggarwal comes to (8,67,000 + 1,20,000 + 50,000) `10,37,000/-.

10. The award in the case of claim on account of death of Ram Niwas Aggarwal is enhanced accordingly.

11. In the case of claim for injuries of Sanjay Aggarwal (the first appellant), the tribunal noted that he had suffered fracture of the right leg and other grievous injuries. He had to undergo two surgical procedures, one in St. Stephens Hospital and the other in Indian Spinal Injury Centre. The tribunal found his annual income on the basis of document (Ex.PW2/C) to be in the sum of `65,436/-. On conclusion that he would have remained away from normal work for a period of one year, income loss for that period was granted. The claimant had led evidence to prove medical expenditure. The tribunal considered the same as under :

"Suffice it to say that the MLC of St. Stephens Hospital shows that this petitioner had suffered two fractures in the ulna and shaft femur as could be seen from the discharge form at Ex.PW 1/B. The expenses found on documentary evidence of Sanjay Aggarwal, is that a sum of Rs.3,29,868/- as per the consolidated bill produced. This consolidated bill is highly

inflated as serial number 1 to 14 in the consolidated bill are reflected in Ex.2/C 73 and 74 which exhibit is an interim statement. Likewise the receipts at Ex.PW 2/C-1 to C-3 for a sum of Rs.49,553/- and Ex.PW 2/C-5 to C-9, C-14, C-24 are the receipts for the advanced amounts. Ex.PW C/44 is an interim bill for a sum of Rs.12,264/- which is inclusive of Ex.PW C/49 and 51. There are many advance receipts which I have carefully gone through. In the consolidated bill of Sanjay Aggarwal, the bills of Ram Niwas Aggarwal, is also included which are at Ex.PW 2/E series. Therefore, the expenses incurred by Sanjay Aggarwal, are totally inflated and duplicated at several places. The interim bills, receipts and final bills are also added whereas the final bills show the receipt numbers for which advanced amounts were already received. As per the oral testimony of Sanjay Aggarwal, he had spent Rs.1 lakh to 1.5 Lakh which can be believed and not the consolidated bill produced by the Ld. counsel for the petitioner. Considering the discharge bill for a total sum of Rs.25,571/- of St. Stephens Hospital at Ex.PW 2/C-71 and the final bill of Indian Spinal Injuries at Ex.PW 2/C 76 for a sum of Rs.54,553/- and other reasonable medical expenses, I find that the medical expenses of Sanjay Aggarwal can be considered at Rs.1.1 lakh for the purposes of award."

12. The tribunal added `50,000/- towards pain & suffering, `20,000/- towards special diet and conveyance, `12,000/- for attendant charges and `50,000/- towards loss of amenities in life.

13. By appeal, the claimant Sanjay Aggarwal submitted that the evidence adduced had shown the medical expenditure in the sum of `3,29,868/- which should have been granted. Having regard to the observations of the tribunal in the impugned judgment quoted above, this cannot be accepted. It appears on perusal of the record that the claimant had made an improper attempt to show inflated expenditure by including even the expenditure of other victims. In the opinion of this Court, the tribunal has made a fair assessment

and thus, there are no good grounds to raise the compensation any further in this case.

14. The third appellant Roopa Aggarwal had claimed that as a result of the accident she had suffered loss of teeth and serious injuries in the head, on which account she was constrained to spend `75,000/-. The tribunal noted that though the claimant had submitted that she had undergone treatment in Safdarjung hospital, no proper proof in that regard was produced. From the documents submitted, however, the tribunal found evidence to support the claim about loss of three teeth. It thus, proceeded to award lumpsum compensation in the sum of `1 lakh, the amount representing pecuniary and non-pecuniary damages.

15. The appeal raises the grievance that medical expenditure had been duly proved. It is noted that no document was formally introduced in evidence or exhibited during the testimony of Roopa Aggarwal appearing as PW4 during the inquiry. In these circumstances, the view taken by the tribunal cannot be faulted. Thus, there is no scope for any enhancement of the compensation in her case.

16. The claim of Ashika Aggarwal, a minor girl, was prosecuted through her mother Roopa Aggarwal examining herself in evidence. According to her testimony, the claimant had suffered injuries in the face and hand. No medical record or proof of expenditure for treatment was adduced. The document (Ex.PW5/B-2), bed head ticket, only reveals treatment in a hospital in Gurgaon. The tribunal, thus, awarded lumpsum compensation in the sum of `10,000/- in her case. In the face of the evidence on record, the

view taken by the tribunal is found to be appropriate and, thus, no case is made out for any enhancement of compensation in favour of Ashika Aggarwal.

17. It had been pleaded that the injuries had been suffered by master Pushp Aggarwal and included a fracture in the right hand. Roopa Aggarwal (PW4), mother of the claimant child, in her testimony vaguely stated that the injuries suffered to be detrimental to his health. No proof of treatment was formally adduced. In the opinion of this Court, the case of master Pushp Aggarwal was similarly placed as that of Ashika Aggarwal and, therefore, it should have received similar compensation as granted in her case. Thus, the appeal respecting denial of claim of Pushp Aggarwal is allowed. The compensation in the amount of `10,000/- with interest as levied by the tribunal in other cases is granted.

18. For removal of doubts, it is added here that in view of the finding on contributory negligence, the claimants other than Sanjay Aggarwal will be entitled to receive compensation in entirety without any deduction.

19. The third respondent (insurer) is directed to deposit the amounts payable to the claimants in terms of the modification ordered above within 30 days of this judgment.

20. The appeal is disposed of in above terms.

R.K. GAUBA (JUDGE) MAY 20, 2016/VLD