Oriental Insurance Co. Ltd. vs Sh. Vahid Khan & Ors.
2019 Latest Caselaw 1065 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment delivered on: 18thFebruary, 2019

+     MAC.APP. 472/2015
      ORIENTAL INSURANCE CO. LTD.                   ...Appellant

                              Through:   Mr. Shoumik Mazumdar,
                                         Advocate.

                             versus

     1. SH. VAHID KHAN
     2. JAITUN
        W/o Sh.Vahid Khan,
     3. ALAM
        S/o Sh. Vahid Khan
     4. AMIR
        S/o Sh. Vahid Khan,
     5. NADEEM
        S/o Sh. Vahid Khan,
     6. RUKSANA
        D/o Sh. Vahid Khan,
     7. JAINA
        D/o Sh. Vahid Khan,
        All R/o E-43/A-57,
        D-Block, New Seemapuri,
        Delhi-110095.
     8. DAYANAND SINGH (DRIVER)
        S/o Sh. Bhim Singh,
        R/o Shergarh Chhata, Mathura, UP.
     9. VIJAY KUMAR JAIN (OWNER)
        S/o Sh. M.P. Jain
        R/o V.P.O Dundahera, Distt. Gurgaon.     ... Respondents

                             Through:     Mr.    Rana        Kunal,
                                          Advocate.




MAC.APP. 472/2015                                       Page 1 of 12
        CORAM:
       HON'BLE MR. JUSTICE I.S.MEHTA

                             JUDGMENT

I. S. MEHTA, J.

1. The instant appeal is arising from the impugned award dated 31.03.2015 in MACT Case No. 235/10 passed by Ms. Kiran Bansal Presiding Officer, MACT North East District, Kakardooma Courts, New Delhi (henceforth referred to as the Tribunal) whereby Respondent No.2 was awarded Rs. 10,10,036/- (including interim compensation) at 9% p.a. from the date of filing of petition till the date of its realization.

2. The brief facts arising from the pleadings are that on 18.06.2010 deceased Azam alongwith one Late Satyapal Singh and Late Anuj @ Monu were going towards Mohan Nagar in a tempo bearing No. UP- 14 BJ-1623. When they reached in front of Krishna Engineering College, one dumper bearing No. HR-55-E-8268 (hereinafter called the offending vehicle) was coming from the opposite side driven by driver Dayanand Singh (Respondent No.8 herein) at a very high speed, rashly and negligently hitting the tempo head on. As a result of which Satyapal died at the spot itself and Azam and Anuj succumbed to their injuries in the hospital. The postmortem of the dead body of deceased Azam was done vide Postmortem Report No. 384/10. The accident occurred due to negligence of the driver of the offending vehicle. Thereafter, an FIR, FIR No. 933/10 under Section 279/304A/427 was got registered at Police Station Sahibabad, Ghaziabad, UP on the same day.

3. Thereafter, a claim petition was filed on 10.08.2010 against driver Dayanand Singh, owner Vijay Kumar Jain and Appellant Oriental Insurance Co. Ltd. being insurer of the offending vehicle. All were alleged to be jointly and severally liable to pay the compensation to the claimants in the petition.

4. Written statement to the petition on behalf of driver Dayanand Singh (Respondent no.8 herein) and owner Vijay Kumar Jain (Respondent no.9 herein) was filed jointly. Oriental Insurance Company (Appellant herein) has filed a separate written statement.

5. Driver and Owner in their written statement denied any liability from the accident and submitted that offending vehicle i.e. dumper bearing No. HR-55-E-8268 was insured with Insurance Company and the vehicle was driven by driver Dayanand Singh with valid licence No. PC.466/Farukhabad/99 dated 19.02.99 which was valid from 17.06.08 to 16.06.11.

6. Appellant Oriental Insurance Company has filed written statement and claimed that claim petition is misconceived and is based on surmises and conjectures. However, the offending vehicle was duly insured with Insurance Company vide Insurance policy No. 215200/31/2010/5267 for period from 08.02.2010 to Midnight of 07.02.2011 in the name of Vijay Kumar Jain (owner) and denied his liability to pay any compensation. Claim petition is based on ulterior motive and prays for dismissal of the claim petition.

7. On basis of pleadings of the parties issues were framed on 08.08.2011 by the Ld. Tribunal.

8. Claimant Sh. Vahid Khan (Respondent No.1 herein) has

examined himself as PW1 and filed his affidavit Ex.PW1/A as Examination-in-chief and relied upon the documents i.e. Photocopy of his driving license Ex.PW1/1, medical record of deceased as Ex.PW1/2 and photocopy of criminal case record Mark A. Claimants have also examined Imran Khan as PW2. He filed his affidavit Ex. PW2/1 and relied upon the documents i.e. voter card Ex.PW2/1. Thereafter, petitioner's evidence was closed on 08.05.2013.

Appellant Insurance Company has examined Ms. Anita Dhawan, Assistant Manager, Oriental Insurance Company as R3W1 and Sh. Ashutosh Shukla, Sr. Assistant, ARTO Farukhabad, UP has been examined as R3W2. Owner Vijay Kumar Jain has examined himself as R2W3 and filed his affidavit Ex.R2W3/1. Thereafter, respondent's evidence was closed on 30.01.2014.

9. On the basis of pleadings and evidence led by the parties, impugned award dated 31.03.2015 was passed by learned Tribunal. Aggrieved from the said award appellant has preferred present appeal.

10. Learned counsel for the Appellant has submitted that the impugned award is based on presumptions, surmises and conjectures and the same is against the facts on record. Claimants are not entitled to any relief.

11. Learned counsel for the Appellant further submitted that claimants failed to prove that accident was caused due to the negligence of driver of the offending vehicle, Dayanand Singh and relied upon the judgment of Apex Court in Oriental Insurance Co. Ltd. V. Meena Variyal & Ors, (2007) 5 SCC 428.

12. Learned counsel for the Appellant further submitted that driving

licence of deceased Azam was found to be fake. If at all, anything, that was contributory negligence, the accident was head on collision. Appellant relied upon the judgment of the Apex Court in Raj Rani &Ors. v. Oriental Insurance Co. Ltd. &Ors, 2009 13 SCC 654 and on the Managing Director, Tamil Nadu State Transport Corporation (Division-II) Ltd. & Anr. V. Amudha Sivaparakasam & Ors., 2010 (2) TN MAC 679.

13. Learned counsel for the Appellant further submitted that Ld. Tribunal erred in granting 50% increase towards future prospects in the income of deceased and relied upon the judgment of Apex Court in Reshma Kumari &Ors v. Madan Mohan, 2013 SCC Online SC 284 and Smt. Sarla Verma v. Delhi Transportation Corporation, 2009 (6) SCC 121.

14. Learned counsel for the Appellant further submitted that the Ld. Tribunal erred in law in applying multiplier of 18, according to age of deceased to calculate loss of dependency and relied upon the judgment of Apex Court in New India Assurance Co. Ltd. v. Shanti Pathak &Ors, (2007) 10 SCC 1.

15. Learned counsel for the Appellant further submitted that Ld. Tribunal erroneously awarded Rs.25,000/- for funeral expenses and Rs.1 lakh for loss of affection. This is without any basis and contrary to law laid down in Sarla Verma (supra) as approved in Reshma Kumari (supra).

16. Per contra, learned counsel for the respondents has submitted that the compensation awarded is just and fair and present appeal of the Appellant deserves to be dismissed.

17. Claimant Vahid Khan, Father of deceased Azam examined himself as PW1 and filed his affidavit Ex.PW1/A in support of the claim petition. He stated that on 18.06.2010 his son Azam (deceased) was going towards Mohan Nagar alongwith Satypal and Anuj in his tempo bearing No. UP-14 BJ-1623.When they reached in front of Krishna Engineering College, the offending vehicle driven by driver Dayanand Singh in a very rash and negligent manner coming from the opposite side of the tempo hit the tempo head on. As a result of which Satyapal died at the spot and the deceased Azam and one Anuj succumbed to their injuries in the hospital. The postmortem of the dead body of the deceased Azam was carried out vide Postmortem Report No. 384/10. Accident occurred due to negligence of driver of the offending vehicle. Thereafter, FIR No. 933/10 under Section 279/304A/427 was got registered at Police Station Sahibabad, Ghaziabad, UP on the same day.

18. In support of the claim petition, Claimants has also examined Imran Khan as PW2. Who filed his affidavit by way of evidence Ex.PW2/1 and relied upon the documents i.e. voter card ExPW2/1. He stated that he has seen the incident and driver of the offending vehicle was coming from opposite side of the tempo in a very high speed, rashly and negligently and hit the tempo head on in front of Krishna Engineering College. As a result of which Satyapal died at the spot and the deceased Azam and one Anuj succumbed to their injuries in the hospital. He further clarified that driver of the offending vehicle was arrested at the spot.

19. To rebut the claim petition, Appellant has examined Ms. Anita

Dhawan, Assistant Manager, Oriental Insurance Company as R3W1. She has deposed that as per the departmental investigation report Ex.R3W1/1, Ex.R3W1/2, Ex.R3W1/3 and Ex.R3W1/4, driving licence of both the drivers were found to be fake. However, during the cross-examination she has admitted that there is no investigation report with regard to the genuineness of driving licence No. PC466/Farukhabad/99 of driver of the offending vehicle and there is no verification of driving licence of deceased Azam.

20. Appellant has also examined Sh. Ashutosh Shukla, Sr. Assistant, ARTO Farukhabad, UP as RW2, who has stated that documents pertaining to licence no. PC.466/Farukhabad/99 dated 19.02.1999 was valid from 17.06.08 to 16.06.11. The record of said license has been misplaced and in this regard department has lodged a complaint/FIR No. 334/13 and the same is Ex.RW2/A.

21. Respondent No.9 owner has examined himself as R2W3 and filed his affidavit Ex.R2W3/1. He has stated that on the date of incident the offending vehicle was insured with Oriental Insurance Company.

22. The factum of offending vehicle being insured on the date of the incident with appellant vide policy No. 215200/31/2010/5267 is not denied by the Appellant.

23. The incident is witnessed by Irfan Khan PW2, who has lodged the FIR No.933/10 and specifically stated that on 18.06.2010 he has seen the incident with his naked eyes and the accident was caused due to negligence of driver of the offending vehicle who was driving the said vehicle at very high speed, rashly and negligently and hit the

tempo of the deceased Azam in front of Krishna Engineering College. Statement of Irfan Khan PW3 is corroborated with Ex.PW2/A and FIR No.933/10. Appellant has not disputed the existence of Insurance Policy No. 215200/31/2010/5267 with owner on the date of incident.

24. So far, plea of the Appellant that driver of the offending vehicle was not holding valid license losses its significance for want of rebuttal evidence.

25. The contention of the Appellant that claimant failed to prove accident has taken place due to negligence on part of driver of the offending vehicle does not seems to be correct.

Claimant has examined Imran Khan PW2 who has seen the incident from his naked eyes and got registered the FIR. He specifically stated that accident was caused due to the negligence of driver of the offending vehicle in front of Krishna Engineering College on 18.06.2010. There cannot be a better eye witness to the incident than Irfan Khan PW2 who has seen the accident through his naked eyes and reliance placed by Appellant on Meena Variyal (supra) is of no help to him.

26. The contention of the Appellant that driving licence of deceased Azam was fake, if at all, anything, it was a contributory negligence as it was head on collision also does not seem to be correct in presence of eyewitness to the incident.

27. So far, the plea of fake driving licence is concerned onus was on the Insurance Company to prove the same. Appellant has neither taken such plea in his written statement nor the same is proved by them. The plea taken is an afterthought version. The reliance placed by the

Appellant on Raj Rani (supra) and on Amudha Sivaparakasam (supra) is misplaced.

28. So far, granting of the future prospects is concerned, the same is no longer res integra. Reliance is placed on National Insurance Company Limited Vs. Pranay Sethi and Ors, (2017) 16 SCC 680. The future prospects have to be included in the loss of income to determine the loss of dependency for award of compensation. The relevant paragraph is reproduced as under:

"59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax competent.

(Emphasis supplied)

29. In the instant case, claimants claimed deceased Azam was earning more than Rs. 10,000/- per month by plying tempo. However, no evidence was brought on record to establish the same. The Ld.

Tribunal assessed the income of the deceased on the basis of the minimum wage of an unskilled worker. The nature of his employment being taken as self employed person. The deceased was 20-22 years old at the time of accident. Hence, Future Prospects ought to have been awarded at 40% of the actual income of the deceased, instead of 50% as awarded by the Ld. Tribunal. Hence, impugned award is modified to that extent only.

30. So far, applying of correct multiplier is concerned, judgment of Pranay Sethi (supra) makes it clear, the age of the deceased should be the basis for applying the multiplier. The reliance placed by the appellant on Shanti Pathak (supra) is misplaced. The award of Ld. Tribunal is, therefore, maintained on this count.

31. The contention of the Appellant that the Ld. Tribunal had wrongly awarded Rs.1,00,000/- towards loss of love and affection and Rs. 25,000/- towards funeral expenses.

By Applying the dictum of the Constitution Bench referred to above with respect to this issue of conventional heads. The relevant extract of the judgment is reproduced herein as under:

"59.8. it seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."

(Emphasis supplied)

32. As per the aforesaid judgment, the compensation of Rs. 25,000 towards funeral is decreased to Rs. 15,000. The amount awarded by

the Ld. Tribunal towards loss of love and affection is, however, maintained.

33. Claimants are entitled to the following amounts:-

         Head                            Compensation awarded
      1. Income                          Rs. 5278/-
      2. Future Prospects                Rs.2,111.2/- (40% of income)
      3. Deduction towards               Rs. 3,694.6 [½ of
                                         (Rs.5,278 + Rs.2,111.2)]
      4. Total Income                    Rs. 3,694.6/-

      6. Loss of future income           Rs.7,98,033.6/-
                                         (Rs.3,694.6x12x18)
      7. Loss of love and affection      Rs.1,00,000/-
      8. Funeral expenses                Rs.15,000/-
      9. Loss of estate                  Rs.10,000/-
      10.Litigation charges              Rs.20,000/-
         Total compensation award        Rs.9,43,033.6/-
         Rounded off to                  Rs.9,43,100/-

34. Therefore, in the light of the above mentioned discussion the present appeal is partly allowed.

35. The award dated 31.03.2015 is accordingly modified.

36. The Appellant, Oriental Insurance Company is directed to pay the compensation amount of Rs.9,43,100/- alongwith interest at the rate of 9% p.a. from the date of the filing of the claim petition till its realization after deducting the amount already released in the favour of

claimant. All pending applications are accordingly disposed of.

37. Let one copy of this judgment be sent to the concerned Court and Trial Court record be sent back. No order as to costs.

I.S.MEHTA

(JUDGE)

FEBRUARY 18, 2019