United India Insurance Co. Ltd. vs Mahima Singh & Ors.
2018 Latest Caselaw 953 Del

$~44
* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision: 9th February, 2018

+     MAC.APP 841/2017

      UNITED INDIA INSURANCE CO. LTD.         ..... Appellant
                    Through: Mr. L.K.Tyagi, Advocates


                         versus


      MAHIMA SINGH & ORS.                              ..... Respondents
                   Through:           Ms. Chandrani Prasad and Mr.Tarun,
                                      Advocates

      CORAM:
      HON'BLE MR. JUSTICE J.R. MIDHA
                           JUDGMENT (ORAL)

1. The appellant has challenged the award dated 18th July, 2017 whereby compensation of Rs.54,87,500/- has been awarded to respondent No.1 to 3.

2. On 29th September, 2015, late Anil Singh was going in car bearing No.DL-3CAQ-6360 to Kanpur. When the car reached Sarai Tiraha on National Highway-2, a gas tanker bearing No.HR-55M-0679 going ahead of the car, applied sudden breaks due to which the car collided with the tanker from behind which resulted in the death of Anil Singh and Jitu. The police registered FIR No.518/2015, P.S. Civil Lines, District Ritawa under Sections 279/338/304-A IPC against the driver of the tanker. Anil Singh was survived by his widow, parents and minor daughter who filed the application for compensation before the Claims Tribunal.

3. The deceased was aged 38 years at the time of death. The deceased was earning Rs.25,000/- per month by working as a supervisor with Logico Marketing apart from income of Rs.10,000/- to Rs.15,000/- from property dealing business.

4. The Claims Tribunal took the income of deceased as Rs.25,000/- per month, added 50% towards future prospects, deducted 1/4 towards his personal expenses and applied the multiplier of 15 to compute the loss of dependency as Rs.50,62,500/-. The Claims Tribunal awarded Rs.1,00,000/- towards loss of love and affection, Rs.1,00,000/- towards loss of guidance to minor child, Rs.1,00,000/- towards loss of consortium, Rs.1,00,000/- towards loss of estate and Rs.25,000/- towards funeral expenses. The total compensation awarded by the Claims Tribunal is Rs.54,87,500/-.

5. Learned counsel for the appellant urged at the time of hearing that the deceased was contributory negligent and, therefore, the compensation awarded is liable to be reduced on account of contributory negligence. It is further submitted that the income of the deceased has not been proved and, therefore, the minimum wages be taken into consideration. It is further submitted that the personal expenses of the deceased be reduced from 1/4th to 1/3rd and the compensation under the heads of loss of love and affection, loss of consortium and loss of estate be reduced.

6. Learned counsel for respondents No.1 to 3 submits that deceased was not contributory negligent. It is further submitted that the police has registered the criminal case of negligence against the driver of the gas tanker who was negligent as he suddenly stopped the tanker on a National Highway. It is further submitted that no evidence has been led by the driver of the offending vehicle or the insurance company to rebut the same.

Reliance is placed on Mukhopadhya v. Gopala Gowda, AIR 2014 SC 1052, Jiju Kuruvila v. Kunjujamma Mohan, 2013 ACJ 2141 (SC), UP Roadways v. Santosh Khurana in FAO No.81/1994 decided on 15th July, 2015, Prabandhak, UP Rajya Sadak Parivahan Nigam v. Rabia Begum, 2015 ACJ 1492 and National Insurance Company Ltd. v. Pushpa Rana, 2008 (101) DRJ 645.

7. With respect to the income of the deceased, it is submitted that employer of the deceased G.P. Singh, Proprietor of Logico Marketing came in the witness box and deposed that the deceased was earning Rs.25,000/- per month besides incentives and perks. He further deposed that the deceased was also provided with car, fuel expenses, and mobile expenses along with the residential accommodation. G.P. Singh proved the salary certificate issued by him as Ex.PW2/2. G.P. Singh marked 'Form for Verification of Tenant' of Delhi Police as Mark 'A' in which the deceased along with his family were shown as tenants. The deceased was also earning Rs.10,000/- to Rs.15,000/- per month from the property dealing business. Sushil Yadav, Proprietor of Sun Heights came in the witness box and deposed that the deceased was earning Rs.10,000/- to Rs.15,000/- per month and deceased used to refer customers and was paid commission for the same. Learned counsel for respondents No.1 to 3 produced the photocopy of the ledger account of the employer showing payment of Rs.25,000/- per month to the deceased. Learned counsel for respondents No.1 to 3 submits that the deduction of personal expenses of 1/4th are justified as the deceased had four legal heirs namely widow, daughter and parents. The father of the deceased died after the filing of the claim petition.

8. On careful consideration of the rival contentions of the parties, this

Court is of the view that the offending vehicle was negligent as it stopped abruptly without any warning or signal or any valid reason but it was also the duty of the deceased to maintain a safe distance from the vehicle moving ahead of him. This Court is of the view that the deceased did not maintain a safe distance between the Gas Tanker and himself and was partly responsible for causing the accident as the deceased failed to maintain a safe distance from the gas tanker going ahead. If the deceased had kept safe distance from the gas tanker and would have exercised due care and caution, the accident could have been avoided. Rule 23 of Rules of the Road Regulations, 1989 specifically stipulates that it is the duty on the driver of a motor vehicle moving behind another vehicle to maintain sufficient distance from that other vehicle to avoid collision in case the vehicle in front suddenly slows down or stops. Rule 23 of Rules of the Road Regulations, 1989 is reproduced as under:-

"Rule 23. Distance from vehicles in front.--The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop."

9. In Shrimanti v. Krishna Deva Madiwal, 2005 ACJ 350, the Full Bench of Karnataka High Court considered whether the defense of contributory negligence should be pleaded and whether any evidence needs to be led to establish the contributory negligence on the part of insured/deceased. The Full Bench held that it is not necessary for the Insurance Company to raise a specific plea of contributory negligence, provided it has denied the negligence on the part of the offending vehicle, and has claimed that the negligence is squarely of that of the deceased. The

Full Bench observed as under:

"It is trite that an argument based on contributory negligence has to be substantiated by the party who advances that argument, but it is equally true that for discharging that burden, the party concerned need not lead evidence. As observed by the Division Bench of this court in Sharada Bai v. Karnataka State Road Transport Corporation, 1988 ACJ 490 (Karnataka), contributory negligence can be-and very often is inferred from the evidence adduced on the claimants' behalf or from the perceptive facts either admitted or found established, on a balance of probabilities in the case. The absence of a specific plea may not therefore be conclusive of the matter nor can the argument that the deceased motorcyclist had contributed to the occurrence of the accident be rejected summarily only because a specific plea in that regard, was not raised in the objections."

10. Thus, it is not necessary that evidence has to be led by the Insurance Company in order to establish contributory negligence, provided that the perceptive facts are either admitted or found established from the evidence adduced by the claimants, and on the basis of probabilities a reasonable inference can be drawn that the deceased was responsible for the accident. In the present case, this Court is of the view that deceased was contributory negligent and no evidence was necessary in view of the admitted position in the FIR as well as claim petition that the tanker ahead of the deceased's car suddenly stopped but the deceased could not stop his vehicle. The judgments cited by the appellants are in the facts of those cases. So far as the contributory negligence is concerned, this Court has consistently held that the driver of the vehicle who hits the vehicle going ahead of him upon sudden stopping, would be contributory negligent. Reference be made to Bharti Axa Gen Ins Co. Ltd. v. Fareeda, 2017 SCC OnLine Del 12600.

11. With respect to the income of the deceased, the employer of the

deceased, appeared in the witness box and deposed that he was paying Rs.25,000/- as salary to the deceased. However, he did not produce any documents before the Claims Tribunal. The documents now produced before this Court reflects that Rs.15,000/- was being paid as salary and Rs.10,000/- as advance. The employer of the deceased had also furnished rent free accommodation to the deceased apart from having providing a car, mobile and fuel expenses. The second employer of the deceased, namely Sushil Yadav appeared in the witness box and deposed that he was paying Rs.10,000/- to Rs.15,000/- as commission to the deceased. The salary of the deceased has to be considered after adding value of the rent free accommodation, car and mobile and fuel expenses, furnished by the employer and income from property dealing commissions. The income of the deceased after deduction of Income Tax is taken to be Rs.25,000/- per month.

12. The deceased was survived by four legal representatives namely widow, daughter and parents and, therefore, the deduction of 1/4 th towards the personal expenses is in accordance with well settled principles for deduction of personal expenses. The Claims Tribunal added 50% towards future prospects which are on a higher side. In the view of principles laid down in National Insurance Company Limited v. Pranay Sethi, 2017 SCC OnLine SC 1270, the future prospects are reduced from 50% to 40%. The compensation awarded by the Claims Tribunal under the non-pecuniary heads, loss of love and affection, loss of consortium, loss of estates and funeral expenses is on higher side. Following Pranay Sethi (supra), the compensation under the non-pecuniary heads is reduced to a total of Rs.70,000/- i.e. Rs.40,000/- for loss of consortium, Rs.15,000/- for loss of

estates and Rs.15,000/- for funeral expenses.

13. Taking the income of the deceased as Rs.25,000/-, adding 40% towards future prospects, deducting 1/4th towards the personal expenses and applying the multiplier of 15, the loss of dependency is computed as Rs.47,25,000/-. Adding Rs.40,000/- towards loss of consortium, Rs.15,000/- towards loss of estates and Rs.15,000/- towards funeral expenses, the total compensation is computed as Rs.47,95,000/-. The deceased is held to be contributory negligent for the accident to the extent of 16.58% and therefore, Rs.7,95,000/- is deducted towards the contributory negligence of the deceased. The respondent are entitled to compensation of Rs.40,00,000/- along with rate of interest @ 9% per annum.

14. The appeal is allowed and the compensation amount is reduced from Rs.54,87,500/- to Rs.40,00,000/- /- along with interest @ 9% per annum.

15. The appellant has deposited Rs.62,60,089/- with the Claims Tribunal on 03rd November, 2017 after deducting TDS of Rs.1,82,686/- in terms of the order dated 16th October, 2017 out of which 40% amount has been released to respondents No.1 to 3 and the balance amount is lying with the State Bank of India, Saket Courts Branch. The State Bank of India, Saket Courts Branch is directed to give particulars of the FDR in which the balance award amount has been kept along with the photocopy of the FDR as well as the present value of the FDR including the interest and if the FDR has been prematurely discharged, then details thereof.

16. Learned counsels for respondents No.1 to 3 submits that they have not received the interim award amount of Rs.50,000/- deducted by the appellant in the calculation. The appellant shall confirm the same and give the particulars of the payment of interim award amount, if made by them, on the

next date of hearing.

17. The appellant shall also hand over the TDS certificates to respondents No.1 to 3 before this Court on the next date of hearing.

18. Respondent No.3, Vidya Devi, shall remain present in Court on the next date of hearing along with passbook of her savings bank accounts near the place of her residence as well as PAN card and Aadhaar Card. The concerned bank is directed not to issue any cheque book or debit card to respondent No.3 and if the same has already been issued, the bank is directed to cancel the same and make an endorsement on her passbook to this effect. Respondent No.3 shall produce the copy of this judgment to the concerned bank, whereupon the bank shall make an endorsement on the passbook of respondent No.3 that no cheque book and/or debit card shall be issued to respondent No.3 without the permission of this Court. However, the concerned bank shall permit respondents No.3 to withdraw money from her savings bank account by means of a withdrawal form. Respondent No.3 shall produce the original passbook of her savings bank account with the necessary endorsement on the next date of hearing.

19. List for disbursement of the balance award amount on 08th March, 2018 at 02:30 p.m.

20. Copy of this judgment be sent to respondent No.3.

21. Copy of this judgment be sent to Claims Tribunal along with the TCR.

22. Copy of this judgment be given dasti to the counsels for the parties under the signature of the Court Master.

23. Copy of this judgment be sent to Mr. Sanjiv Kakra, learned counsel for State Bank of India, who shall communicate the same to State Bank of India, Saket Courts Branch and ensure compliance before the next date of

hearing.

FEBRUARY 9, 2018 J.R. MIDHA, J.

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