Delhi High Court
The Oriental Insurance Co Ltd. vs Prem Devi & Ors. on 13 July, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 13.07.2017
+ MAC.APP. 227/2017 & CM No.9251/2017
THE ORIENTAL INSURANCE CO LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate.
Versus
PREM DEVI & ORS. ..... Respondents
Through: Mr. S.N. Parashar & Ms Pankaja
Kumari, Advocates for all Respondents.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J (Oral)
1. The appeal has impugned the award dated 20.01.2017 of the MACT
passed in Suit No.5217/16 on the ground that since the claimants have not
been able to prove total negligence on the part of the driver of the insured
vehicle, the Insurance Company would not be liable to pay the awarded
amount of Rs.17,66,436/-. The other grounds of challenge are that the
amounts awarded under the various heads are too high. The awarded
amount is as under:-
"i. Loss of dependency Rs.13,46,436/-
ii. Loss of love and affection Rs. 2,00,000/-
iii. Funeral expenses Rs. 25,000/-
iv. Loss of Estate Rs. 25,000/-
v. Loss of consortium to petitioner no.1 Rs. 1,50,000/-
vi. Costs of proceedings Rs. 20,000/-
Total Rs. 17,66,436/-"
MAC.APP. 227/2017 Page 1 of 4
2. Apropos the amounts of Rs.2,00,000/- and Rs.1,50,000/- granted
towards loss of love and affection and loss of consortium respectively, the
Court is of the view that these are neither exorbitant nor irrational in view of
the judgment of this Court in MAC. APP. No.186/2012 titled as ICICI
Lombard General Insurance Co. Ltd. Vs. Meena & Ors. decided on
16.07.2012. The other non-pecuniary amounts awarded too are justified and
need no interference by this Court.
3. Apropos the main ground that the witness has not been able to prove
the complete negligence of the offending vehicle, the Court notes that PW2
Mr. Ram Kesh deposed that on 19.09.2013 he and Madan Lal were going on
a Motor Cycle bearing Registration No.HR-26-BL-4612, it was being
driven by the former when all of a sudden, the offending vehicle TATA
Tempo 407 bearing Registration No.HR-55-B-8316, being driven by
respondent No.1/Ranjeet Yadav, came from behind and hit the motorcycle.
Due to forceful impact, Madan Lal fell down on the metal road; he was
taken to the hospital where he was declared brought dead. The evidence of
Ram Kesh (PW2) was considered by the Trial Court and dealt with as
under:-
"7. Smt. Prem Devi (petitioner no.1) in her affidavit
(Ex.PW-1/A), filed in evidence reiterated the facts of her
claim petition, as described above. Sh. Ram Kesh (PW2) is
stated to be driver of motorcycle, on which victim was
travelling, at the time of accident. It is sworn on oath by
this witness in his affidavit (Ex.PW2/A) that on 20.09.2013,
he was driving motorcycle no. HR 26bl-4612 on which
Madan Lal was sitting as a pillion rider. He was going on
left side of road, driving said motorcycle properly. At about
9:30 pm, when they reached near Bilaspur Chowk at
Gurgaon, Haryana a tempo bearing no. HR 55-B-8316
MAC.APP. 227/2017 Page 2 of 4
came thee from behind. It was being driven by respondent
no.1, at very fast speed, rashly, negligently and in a zig zag
manner. It hit their motorcycle from their back side. Due to
which their motorcycle fell down on metallic road. Head of
Madan Lal was crushed in that accident. He was taken to
Life Line Health Care Hospital, Gurgaon, where he was
declared 'brought dead'. Postmortem on dead body of
Madan Lal was conduct in government hospital, Gurgaon.
Ranjeet Yadav (respondent no.1) was arrested by police and
offending tempo was also taken into police custody. A case
FIR No.302/13, was registered in PS Bilaspur, Gurgaon,
Haryana about this accident on his statement.
8. No contradiction appeared in deposition of PW2.
In his cross examination by Ld. Counsel for respondent
no.3, said witness denied a suggestion that said accident
took place, due to his own negligence. I have no reason to
disbelieve his testimony, particularly when said witness was
not cross examined by respondent no.1, to prove that he was
not negligent in his driving.
9. Apart from deposition of PWs, particularly PW1,
the fact that victim (Madan Lal) died due to injuries is
supported from documents put on file by police i.e. MLC/
post-mortem report etc. Cause of death of victim (Madan
Lal), is stated to be hemorrhagic shock due to ante-mortem
blunt force impact.
10. Considering evidence as discussed above, it is well
established that accident in question took place due to rash
or negligent driving of tempo no.HR55 B 8316 by
respondent no.1. It is not in dispute that said tempo was
owned by respondent no.2 and insured with respondent
no.3. Petitioners, being LRs of victim (Madan Lal) are will
within their rights to claim compensation from respondents.
Being insurer, respondent no.3 is primarily liable to pay
compensation."
MAC.APP. 227/2017 Page 3 of 4
4. The learned counsel for the appellant submits that as the motorcycle
rider Ram Kesh would obviously be looking ahead on the road, he could not
have seen whether the vehicle behind him was being driven rashly. Hence it
is not be conclusively established that the offending vehicle was being
driven at a "very fast speed, rashly, negligently and in a zig-zag manner".
Therefore, the impugned order has erred in concluding that the offending
vehicle was absolutely liable for the death of the pillion rider. The argument
is untenable because what has to be kept in mind is that the motorcycle was
hit from behind by the offending vehicle at 9:30 pm in the evening, the
pillion rider fell off on the road and succumbed to fatal injuries sustained in
the motor accident. Both vehicles were moving on the road in the same
directions. The motorcycle was followed by the offending vehicle.
Therefore, only the vehicle ahead i.e. the motorcycle could have been hit
from behind. The fault of the latter would be a natural assumption. In the
absence of any material on record to show any fault of the motorcycle rider,
the fault of the vehicle behind it would be absolute. An FIR was registered,
Ranjeet Singh, owner of the offending vehicle was taken into police custody
and the vehicle was subsequently released.
5. For the aforesaid reasons, the Court is unable to agree with the
submissions of the appellant. The appeal is without merit and is dismissed
accordingly. The pending application also stands disposed off.
NAJMI WAZIRI, J.
JULY 13, 2017
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