Delhi High Court
The New India Assurance Co. Ltd. vs Renuka Sharma & Ors. on 3 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: October 03, 2018
+ MAC.APP. 492/2015
THE NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
RENUKA SHARMA & ORS. .....Respondents
Through: Mr. Aatreya Singh, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 8th April, 2015 grants compensation of
₹67,49,856/- with interest @ 8% per annum to respondents-Claimants on
account of death of IBP Company's Divisional Manager-Ajay Kumar
Sharma, aged 46 years, in a vehicular accident on 3rd January, 2006.
2. The factual background of this case, as noticed in the impugned
Award, is as under:-
"This is a petition u/s 166 and 140 of the Motor
Vehicle Act, 1988 (hereinafter referred to as M.V. Act) for
grant of compensation. This was one of the old MACT
cases pending before this Tribunal. In brief the relevant
facts of the case as mentioned in the petition are that one
Sh. Ajay Kumar Sharma expired in road traffic accident on
03-01-2006 at about 1.45 p.m. while driving Maruti
Wagon R bearing registration no. DL 8CH 4853. It is
mentioned in the petition that on the said date and time the
deceased was proceeding at GTK Road situated within the
area of Village Lalpur, Kosarha on way from Allahabad to
Varanasi and at that time the car was proceeding on
proper side of the highway at moderate speed and there
was a stationary truck bearing registration no. UP 65H
5172 parked on the highway ahead of the car without any
indication on and around the truck that the truck is
stationary on the road. It is further mentioned that the
moment Sh. Ajay Kumar Sharma, the driver of the said car
gathered that a truck is stationary on the road, he applied
brakes and tried to swerve the car to his left to avoid the
impact with the stationary truck, however, despite his best
efforts the front portion of the car struck against the rear
portion of the truck and on account of impact, car was
badly damaged and Sh. Ajay Kumar Sharma suffered
multiple injuries and succumbed to same on the spot."
3. On the basis of evidence led, impugned Award has been rendered
by Motor Accident Claims Tribunal (henceforth referred to as "the
Tribunal") and the breakup of compensation awarded to legal heirs of
deceased is as under:-
(i) Loss of dependency : `65,24,856/-
(ii) Loss of Care & Guidance for children : `1,00,000/-
(iii) Funeral expenses : `25,000/-
(iv) Loss of Consortium : `1,00,000/-
Total : `67,49,856/-
4. The challenge to impugned Award by learned counsel for appellant-
Insurer is on the ground that the claim petition filed by respondents-
Claimants ought to have been dismissed by the Tribunal as driver of the
insured vehicle was not impleaded as a party. To submit so, reliance is
placed upon Supreme Court's decision in Machindranath Kernath Kasar
vs. DS Mylarappa & Ors., (2008) 13 SCC 198. It is submitted by Insurer's
counsel that it is evident from the photographs (Ex.PW1/17 to 1/19) that
the accident in question had taken place due to contributory negligence of
deceased-Ajay Kumar Sharma, who was driving the WagonR car rashly
and negligently. It is pointed out that FIR of this case was registered
against unknown driver and later on, the Cancellation Report was
submitted in respect of the said FIR and that there is no eye-witness to this
accident.
5. It is further submitted by Insurer's counsel that the „personal
expenses‟ of one-fourth have been deducted by the Tribunal while
assessing the income of the deceased, for calculating 'loss of dependency‟
whereas, one-third towards „personal expenses‟ of deceased ought to
have been deducted as two children of deceased were of major age and
the father of deceased was not dependent upon him. It is next submitted
that the „non-pecuniary damages' granted by the Tribunal needs to be
brought in tune with Supreme Court's Constitution Bench decision in
National Insurance Company Ltd. Vs. Pranay Sethi & Ors., (2017) 16
SCC 680. It is also submitted that appellant is not liable to pay the penal
interest of 12% per annum. Lastly, it is submitted on behalf of Insurer
that the Fitness Certificate of the insured vehicle was not on valid on day
of the accident and so, the liability to pay compensation is of driver and
owner of the insured vehicle or, in the alternative, recovery rights qua
owner and driver of the insured vehicle ought to be granted to appellant.
6. On the contrary, learned counsel for respondent-Claimants refutes
the aforesaid stand taken on behalf of the Insurer and submits that the
compensation granted by the Tribunal is just and fair. So, this appeal
deserves to be dismissed.
7. Upon hearing and on perusal of impugned Award, evidence on
record and the decisions cited, I find that despite Tribunal's order of 14th
September, 2010, appellant-Insurer did not supply the particulars of
driver of the insured vehicle and so, it cannot be said that the claim
petition is not maintainable. Thus, reliance placed upon decision in
Machindranath (supra) is of no avail to the case of appellant-Insurer.
8. As regards the infirmities pointed out in impugned Award are
concerned, I find that there is no cross-examination of widow (PW-1) of
the deceased, on the aspect as to why the FIR of this case was registered
late. Supreme Court's decision in Rajesh & Ors. vs. Rajbir Singh & Ors.
(2013) 9 SCC 54 has reiterated that regarding deductions to be made from
salary of deceased, there is no cross-examination of the employer's
witness (PW-2). There may not be an eye-witness of the accident in
question, but from the photographs (EX. PW1/17 to 1/19), it becomes
evident that the accident in question had taken place in the afternoon
time. It is true that there were no blinkers or indicators on the Insured
vehicle i.e. the Truck, to indicate that it was out of order, but on this
count alone, the entire liability to pay the awarded compensation cannot
be put on the Insurer, as I find that driver of the car in question i.e. the
deceased was also negligent in not avoiding the accident in question, in
view of the aforesaid photographs on record.
9. In the considered opinion of this Court, there was contributory
negligence of the deceased and the driver of the insured vehicle in the
ratio of 50:50. Thus, „loss of dependency‟ is reassessed, after deducting
50% on account of contributory negligence of the deceased, as
₹32,62,428/-. As far as deduction of one-fourth towards „personal
expenses‟ of deceased is concerned, I find that there is no effective cross-
examination of the witness examined to vary the deduction from one-
fourth to one-third.
10. The compensation granted by the Tribunal under the „non
pecuniary heads‟, needs to be brought in tune with Supreme Court's
Constitution Bench decision in Pranay Sethi (supra). Accordingly,
compensation granted by the Tribunal under the head of „loss of care and
guidance for children‟ is disallowed and „funeral expenses‟ are reduced
from `25,000/- to `15,000/-. The compensation granted under the head
„loss of consortium‟ is also reduced from `1,00,000/- to `40,000/-.
11. In light of the aforesaid, the compensation payable to respondents-
Claimants is reassessed as under:-
1. Loss of Dependency `32,62,428/-
2. Loss of Consortium `40,000/-
3. Funeral Expenses `15,000/-
Total `33,17,428/-
12. Since there is no cross-objection by respondents-Claimants,
therefore, the interest of 8% per annum awarded on the compensation
granted by the Tribunal is maintained. Consequentially, the compensation
of ₹67,49,856/- granted by the Tribunal to respondent-Claimants, is
reduced to ₹33,17,428/-. The modified compensation shall carry interest
@ 8% per annum and it be released to the respondents-Claimants
forthwith in the ratio already indicated in the impugned Award. So far as
the recovery rights sought by the appellant is concerned, I find that
appellant has not led any evidence nor has got the driver and owner of the
insured vehicle examined and so, no recovery rights can be granted to
appellant on account of lack of Fitness Certificate, as alleged by
appellant. Statutory deposit alongwith excess deposit be refunded to the
appellant-Insurer.
13. While modifying the impugned Award to the aforesaid extent, this
appeal is accordingly disposed of.
(SUNIL GAUR)
JUDGE
OCTOBER 03, 2018
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