Delhi High Court
Icici Lombard General Insurance ... vs Smt. Santosh & Ors on 30 May, 2016
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 30.05.2016
+ MAC.APP. 1142/2012 & CM No.18415/2012
ICICI LOMBARD GENERAL INSURANCE CO. LTD. .. Appellant
Through: Ms. Suman Bagga, Advocate
versus
SMT. SANTOSH & ORS ..... Respondents
Through: Mr. C.K. Gola, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Rajesh Kumar, aged 45 years, earning his livelihood from a private
service, suffered injuries in a motor vehicular accident that occurred on
06.04.2008 at about 10.30 a.m. involving motorcycle bearing registration
No. DL 3S AK 4453 (motorcycle) driven by him on one hand and a bus
bearing registration No. HR 69 5523 (the bus) of Haryana Roadways on the
other, the latter vehicle admittedly insured against third party risk for the
period in question with the appellant insurance company (insurer). As a
result of injuries, he died leading to an accident claim case (MACT Suit No.
339/2010) being instituted on 22.10.2008 by first to fifth respondents
(claimants), they being his dependent family members. In the claim case, it
was pleaded that the accident had occurred due to negligence on the part of
the bus driver who had allowed the bus to remain stationary in the middle of
the road without any caution sign having been applied. This plea was
accepted by the tribunal on the basis of evidence led, primarily the oral
testimony of Saurabh (PW-2), inter alia, adduced on the basis of his
affidavit (Ex.PW2/A). The tribunal awarded compensation in the sum of `
22,93,000/- with interest @ 7.5% per annum from the date of filing of the
petition till realization, which amount includes ` 22,68,000/- towards loss of
dependency calculated on the basis of income assessed to be in the sum of
` 12,000/- per month on which the element of future prospects of increase to
the extent of 50% was added.
2. By the appeal at hand, the insurer questions the finding on the issue of
negligence submitting that the sequence of events as have been brought on
record reveal the possibility of contributory negligence on the part of the
deceased motorcyclist of which due discount should have been given. The
insurer also questions the income and loss of dependency on the ground that
the calculations reached by the tribunal are unfounded. Per contra, the
claimants argue through their counsel that the non-pecuniary heads of
damages awarded by the tribunal and the rate of interest levied are unduly
low and inadequate.
3. Having heard both sides and having gone through the record, the plea
of contributory negligence must be rejected. The word of PW-2 Saurabh
has not been countered by any evidence to the contrary. His evidence
clearly shows that the bus has been allowed to be stationary in the middle of
the road without any caution sign having been applied. Noticeably, the bus
driver did not even enter the witness box. In these circumstances, the
finding on issue of negligence returned by the tribunal does not call for any
interference.
4. The finding about the income was returned by the tribunal on the
basis of presumption. The counsel for the claimants fairly submitted that
further evidence is required to be adduced to bring home the income of
` 20,000/- which the deceased was earning from private employment. This
further evidence would include the expenditure which he was incurring on
the family and the savings occurring to the family. The claimants, thus, join
the insurer in requesting the matter to be considered afresh and for such
purposes submit that opportunity be given for further evidence to be
adduced.
5. In the facts and circumstances, the appeal is partly allowed. While
confirming the findings on the issue of negligence, the matter to the extent it
requires to be inquired into for appropriate award of just compensation to be
granted is remitted to the tribunal for further inquiry and fresh adjudication.
During such further inquiry, the claimants will be entitled to lead further
evidence which, needless to add, would be subject to the right of the parties
which contest to cross-examine the additional witnesses and also lead
evidence in rebuttal. The parties shall appear before the tribunal on 29 th
July, 2016.
6. By order dated 31.10.2012, the insurance company had been directed
to deposit 75% of the awarded amount with upto date interest which was
directed to be held in fixed deposit receipt. By order dated 13.02.2013,
50% of the awarded amount was released to the claimants from the deposit
thus made. The balance lying in deposit shall presently be refunded to be
insurance company with statutory deposit, if made. The amount already
received by the claimants shall be subject to further directions in light of the
fresh adjudication to be rendered by the tribunal.
7. The appeal is disposed of in above terms.
(R.K. GAUBA)
JUDGE
MAY 30, 2016
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