National Insurance Co Ltd vs Babita Jain & Ors
2017 Latest Caselaw 5561 Del

$~22
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                         Decided on: October 10, 2017
+      MAC APPEAL No. 502/2016
       NATIONAL INSURANCE CO LTD         ..... Appellant
               Through: Mr. L.K.Tyagi, Adv.

                          Versus

       BABITA JAIN & ORS                   ..... Respondents
                Through: Mr. N.K.Jha, Adv. for R-1 & 5.
                         Mr. Bharat Gupta &
                         Mr. Vishesh Chauhan, Advs. for R-8.

CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
             JUDGMENT (ORAL)

1.

1. Rakesh Kumar Jain, a business man, aged about 40 years, was moving on his two wheeler scooter bearing registration No.DL-4S- AN-5312 (the scooter) on 14.05.2008 from Lawrence Road to his residence in the area of Pitam Pura, New Delhi via Mahindra Park. An Alto car bearing registration No.DL-8CH-7228 (the car) is stated to have been moving ahead of it on the same road. As per the averments in the accident claim case (MACT Case No.84/2014) filed by first to fifth claimants (collectively, the claimants), the car driver suddenly stopped his vehicle and opened his door, this resulting in the scooterist losing balance and falling down on the road at about 11.00 am. Around the same time, bus bearing registration No.DL-1PB-3533 (the bus) plying on State carriage route No.970 is stated to have come

at the scene from behind at a high speed and run over the scooterist lying on the road crushing him to death.

2. The appellant herein is concededly the insurer against third party risk in respect of the bus which was driven at the relevant point of time by the fifth respondent, it being a vehicle registered in the name of seventh respondent. The car, as per the record and the pleadings, was registered in the name of the ninth respondent but admittedly in use and control of the eighth respondent, the latter having been described as the driver of the car.

3. The Tribunal held inquiry into the claim petition wherein it had been alleged that the accident had occurred due to negligence on the part both of the car driver and the bus driver. On the basis of evidence that was adduced, the Tribunal, by judgment dated 10.3.2016, upheld the case for compensation on the principle of fault liability under Section 166, Motor Vehicles Act, 1988. It awarded compensation in the total sum of Rs. 27,24,819/- and fastened the liability to pay on the insurer of the bus (the appellant), not apportioning any liability on the driver or registered owner of the car observing in this context only that the said vehicle was "not insured" and further that the claimants could seek compensation from any of the insurer of the vehicles involved in the accidents which are at fault.

4. The insurer of the bus by the appeal has questioned the impugned judgment of the Tribunal pressing it only on two counts. It is the submission of the appellant that the evidence had also shown negligence on the part of the car driver. In its submission, the driver

was the actual owner of the car he having concededly purchased it from the registered owner and, therefore, the liability should have been equally apportioned against the driver, owner and insurer of the bus on one hand and the driver-cum-owner of the car on the other. It is also the submission of the insurer of the bus that the dependency loss has not been properly worked out as the element of future prospects of increase in income had been wrongly added.

5. The submission about the error in computation needs only to be noted and rejected. The claimants had proved, during inquiry, the Income Tax Returns (ITRs) for four assessment years (AY), they being AY 2006-2007 to 2009-2010 (collectively, Ex.PW1/2). The last ITR was concededly filed after the death by the widow and, therefore, was not considered by the Tribunal as the basis for calculation. However, the other three ITRs do present material which irrefutably shows progressive rise in income. In this view of the matter, the inclusion of the element of future prospects for calculating the notional income and dependency loss cannot be grudged. [see MACAPP. 548/2013, United India Insurance Co. Ltd. vs. Kamla & Ors.]

6. The eighth respondent, described as the car driver, in his written statement, had not disputed that he was the person in control of the vehicle. He vaguely stated that he had purchased the car recently without specifying the date of such purchase. He appeared in the witness box as his own witness (R-4W/1) on the strength of his affidavit (Ex.R-4W/1A). It is clear from his testimony that after the

accident he had got the car released on superdari from the court of Metropolitan Magistrate and, for such purpose, he had shown to the satisfaction of the said court that he was the owner of the vehicle at the relevant point of time. He has vaguely stated in his deposition that he had purchased the car and got the same transferred later in his name, though there being no date specified in this regard. The mere fact that the car was registered in the name of the ninth respondent on the date of accident would be of no consequence. It is clear from his own testimony that on the crucial date he was the person in control and use of the vehicle.

7. It is his own case that he had taken the car to the place in question on his own. In these circumstances, the conclusion of the Tribunal that he was the driver of the car and was having its possession at the relevant point of time would not require any interference. It has to be added that given the above admissions, he is also to be treated as the person in control of the vehicle, in fact he being the real owner of the vehicle in question and therefore liable in such capacity as well. In MACA No. 524/2008, titled as Siddharth Khetrapal vs. Mohammad Hanif & Ors, decided on 14th September, 2017, this court after examining the statutory provisions and rulings of Supreme Court in Pushpa @ Leela & Ors. vs. Shakuntala & Ors., (2011) 2 SCC 240 (SC) and Godavari Finance Company vs. Degala Satyanarayanamma & Ors., (2008) 5 SCC 107 and of Full Bench of this Court in Anand Sarup Sharma vs. P.P. Khurana & Ors., AIR 1989 Delhi 88 (FB) held thus:-

"25. The registration of the vehicle in the name of an individual is of import. It generally proceeds on the presumption that the person in whose name the vehicle is registered is the person responsible for its use. This attracts to him the vicarious liability. But then, it being a rebuttable presumption, it cannot be a thumb rule that in all cases the registered owner must be held accountable. If the registered owner can show, by credible evidence, like in the present case, that he had no control over the vehicle or that the vehicle was with someone else, over whom, or use of the vehicle by whom, he had no control, he cannot be held accountable, the liability in such case shifting on to the person who had the control over the vehicle".

8. For the foregoing reasons and in above view, liability cannot be fastened against the ninth respondent only because the car was registered in his name on the relevant date.

9. Coming to the issue of composite negligence, while the claimants and the insurer of the bus argued that in the above noted state of evidence the responsibility of the car driver i.e. the eighth respondent, has been duly brought out, it is the submission of the eighth respondent that since the sole eye witness Satpal Jain (PW-2) was unable to identify him as the driver, his own evidence as R4W1 supported by the evidence of two witnesses examined by him, they being Pradeep Malik (R4W2) and Balbir Chand (R4W3), on the strength of their respective affidavits (Ex. R4W2/A and Ex. R4W3/A) showing the fact that the car at the relevant point of time was not moving but instead had been parked on the road side cannot be ignored.

10. The evidence of the eighth respondent and the two above- mentioned witnesses examined on his behalf is based on his pleadings in the written statement that on account of death having occurred on 12.05.2008, he had to participate in the rituals relating to the funeral and for such purpose he had gone in the car to the place in question, having parked it on the road side he being present inside the house of R4W3. It is his case that the relatives of the scooterist Rakesh Kumar Jain (deceased) had set his car on fire after the incident, the argument being the involvement of the car was wrongly assumed without any basis.

11. The evidence of eye witness Satpal Jain (PW2) has brought out facts affirming the case of the claimants. As per the said testimony, all the three vehicles including the car were on the move, the car being ahead of the scooter, the bus having appeared at the scene later. The witness (PW2) attributed the falling of the scooterist due to the sudden application of breaks by the car driver and he also opening suddenly the right side door. There is no other theory brought on record by any other evidence. But for such sudden events, there would have been no occasion for the scooterist to have fallen down on his own. It is not the case of the eighth respondent that the scooterist was hit, while on the move, by the bus from behind. The eye witness PW-2 may have initially stated that he would be in a position to identify the car driver but then showed disinclination to confirm this fact during his cross- examination. But, from this itself, it cannot be inferred that he was not telling the entire truth. Rather, his assertion that after the accident, the

car driver had fled away from the scene while a crowd had gathered to set the car afire confirms that law and order situation had arisen wherein a mob had taken control of the scene of accident. The hesitation on the part of PW2 to identify the car driver in this set of facts and circumstances is quite understandable. But it cannot be denied that the car was not moving or that his deposition to such effect is factually wrong. The witnesses examined by the eighth respondent in support of his theory may justify his presence in the area on the relevant date and time. But, it is difficult to accept their version that the eighth respondent was inside the house of the third above mentioned witness rather than being in the car.

12. It is clear from the evidence that the car was in the extreme left lane of the road. The scooterist, it appears, was also moving at the relevant point of time in the said lane meant for traffic moving at slow speed. It is clear from the evidence of the PW-2 that the car was also moving at a speed of 30 to 40 kilometers per hour only before it came to a sudden halt. These facts rather show that the bus driver had come at an uncontrollable speed from behind in the same lane meant for slower traffic. Therefore, while the negligence on the part of drivers of both the bus and the car has been established, the liability will have to be apportioned between them in the ratio of 75:25. Ordered accordingly.

13. For the foregoing reasons the appeal of the insurer of the bus is partly allowed. While it shall continue to be liable to pay the compensation awarded by the Tribunal to the claimants, it shall have a

right to recover 25% of the amount consequently paid from the car driver-cum-owner i.e. the eighth respondent.

14. The eighth respondent is directed to pay to the appellant Insurance Company, the amount payable by him in terms of the modification ordered above within 30 days. In case of default, the Insurance Company will have the liberty to take out appropriate proceedings before the Tribunal.

15. The appellant-insurer of the bus was directed by order dated 18.07.2016 to deposit the entire awarded amount with up-to-date interest with UCO Bank, Delhi High Court Branch. By subsequent order dated 01.08.2016, 50% from out of such deposited amount was allowed to be released to the claimants. The balance amount shall now be released to the claimants.

16. The statutory amount shall be refunded.

17. The appeal is disposed of accordingly.

R.K.GAUBA, J.

OCTOBER 10, 2017 ak