Oriental Ins. Co. Ltd. vs Neelam & Ors.
2017 Latest Caselaw 5111 Del

$~R-216
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                     Decided on: 15th September, 2017
+      MAC APPEAL No. 414/2010

       ORIENTAL INS. CO. LTD.                       ..... Appellant
                      Through:         Mr. Pradeep Gaur, Adv.

                          versus

       NEELAM & ORS.                               ..... Respondents
                          Through:     None.

CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA

                      JUDGMENT (ORAL)

1. Balbir Singh, 27 years old, working as security officer with M/s Air Sahara Pvt. Ltd., deputed at bay no. 29 at Indira Gandhi International Airport, New Delhi suffered injuries in a motor vehicular accident that took place on 21.10.2004 at about 5:30AM and died in the consequence on account of he being hit by a passenger coach bus bearing registration No. PB 08 WT 3430 registered in the name of M/s Jet Airways (I) Pvt. Ltd. (seventh respondent) also having its operations at the same airport, the sixth respondent being the driver of the said vehicle at the relevant point of time. His wife and other members of the family dependent upon him, they being first to fifth respondents (collectively, the claimants) instituted accident claim case (suit no. 217/2008) on 15.01.2005 seeking compensation, alleging that the accident had occurred due to negligence on the part of the said

passenger coach. The appellant insurance company was impleaded as party respondent, it being the insurer against the third party risk in respect of the said passenger coach, this in addition to the aforesaid driver and registered owner.

2. The case was contested before the tribunal by the insurer, inter alia, on the pleadings that the passenger coach was not a motor vehicle within the meaning of the expression defined in the law and that the place where the accident occurred being an airport, where general public is not allowed, it could not be treated as a public place. The tribunal held inquiry, and by judgment dated 07.04.2010, rejected both the said contentions of the insurer. It returned a finding that the death had occurred due to negligent driving of the passenger coach and awarded compensation in the total sum of Rs. 22,06,000/- and directed the insurer to pay with interest @ 9 %, calculating it thus:-

       S.No.        Heads                           Compensation
       1.           Loss of Dependency              Rs. 20,51,000/-
       2.           Loss of Love & Affection        Rs. 1,25,000/-
       3.           Loss of consortium              Rs. 10,000/-
       4.           Funeral expenses                Rs. 10,000/-
       5.           Loss to Estate                  Rs. 10,000/-
                    Total                           Rs. 22,06,000/-

3. By the appeal at hand, the insurer reiterates the above- mentioned defences and also questions the computation of loss of dependency submitting that the income has been wrongly calculated.

4. Having heard the learned counsel for the insurer and having gone through the record of the inquiry before the tribunal, this court finds no substance or merit in the contentions about the passenger coach not being a motor vehicle or the place of accident not being a public place.

5. The expression „motor vehicle‟ is defined in Section 2 (28) of the Motor Vehicles Act, 1988, as:-

"motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty-five cubic centimeters."

6. There is no doubt that passenger coach is a vehicle which is propelled mechanically, the power used being drawn from the internal source (the engine). Noticeably, the passenger coach in question was registered by the transport authority as a motor vehicle and when it was insured, the appellant also treated it as a motor vehicle. It is not fair on the part of the insurance company to raise such contentions when called upon to discharge its obligations verify the insurance policy.

7. The expression "public place" is defined in Section 2(34) of the Motor Vehicles, Act, 1988 as:-

"public place" means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage."

8. It is clear from a bare reading of the definition as cited above that the road where the accident may have occurred need not be a thoroughfare. It is correct that it must be a road where the public would have "right to access" but there is nothing in the provision to indicate that a place where public has a restricted right would not be treated as a public place. The area of the airport is accessible by the public at large, though such access being permissive, for the passengers on the basis of the travel documents that they hold, and, for the airport staff or the crew or employees of the airlines it being upon authorization from their respective controllers. The fact that the entry is not un-restricted would have no bearing on the issue raised in the present context. The deceased was an employee of an airline which was lawfully operating from the airport. He was on duty within the airport area in discharge of his duty and was entitled to all the protection in law including protection of his life and limb against the negligent driving of motor vehicles.

9. The tribunal has correctly rejected the contention of the insurance company referring, in this context, to two judgments to the same effect by various high courts. In the light of consistent view taken by the courts and in the given set of facts and circumstances, it is unfortunate that this plea is being re-agitated in the claim case arising out of fatal accident.

10. The submission of the appellant about the wrong calculation of the income of the deceased, however, is found to be correct. The evidence had shown that the deceased was earning from his employment as security officer with M/s Air Sahara Pvt. Ltd. Rs. 5,600/- per month. The evidence about part time earnings of Rs. 7,000/- per month as accountant with M/s Chaudhary Industrial Garment Machine, or Rs. 2,000/- with M/s Inside sought to be proved through Ranbir Singh (PW-4) and Anil Wadhwa (PW-1) is found to be not very convincing. It is inconceivable that a regular employee of Sahara Airlines whose duty would be quite time consuming and extensive, would be permitted, or have the occasion, to work additionally on part time basis in such manner. Even otherwise, the witnesses from the said entities examined at inquiry did not share any records affirming such engagement of the deceased.

11. But, at the same time, it cannot be ignored that the deceased had submitted income tax return (ITR) for the assessment year 2004-05 (vide Ex.PW-1/13) in August 2004 declaring his total income to be Rs. 72,980/- against which he had incurred no tax liability. There is no reason why the same should not be accepted as the better and more authentic proof. The loss of dependency, therefore, is re-calculated taking the total income of the deceased as Rs. 72,980/- per annum. The element of future prospects of increase liable to be added thereupon given the fact that his employment was regular, deduction on account of personal & living expenses being to the extent of 1/4 th and the multiplier of 17, being invoked, as rightly done by the tribunal.

12. Thus, loss of dependency is recomputed as (72,980 x 150 ÷ 100 x 3 ÷ 4 x 17) Rs. 13,95,74.50/- rounded off to Rs. 13,96,000/-.

13. It is, also noted that the tribunal has not granted non-pecuniary damages in accordance with the dispensation in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150. Instead of the awards granted by the tribunal, Rs.1,00,000/- 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.

14. Thus, the total compensation payable in the case is computed as (13,96,000 + 1,00,000 + 1,00,000+ 25,000 + 25,000) Rs. 16,46,000/- (Rupees Sixteen Lakhs Forty Six Thousand Only.) The award is modified accordingly. Needless to add, it shall carry interest as levied by the tribunal.

15. By order dated 14.07.2010, the insurance company had been directed to deposit the entire awarded amount with interest and out of such deposit seventy five per cent (75%) was allowed to be released to the claimants. The balance, if any, shall now be released to the claimants in terms of the modification ordered above, the excess in deposit to be refunded to the insurance company.

16. The statutory amount with corresponding interest shall be refunded to the appellant insurance company.

R.K.GAUBA, J.

SEPTEMBER 15, 2017 nk