Delhi High Court
Iffco Tokio Gen Ins Co Ltd vs Mithlesh Devi & Ors on 26 September, 2019
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 26.09.2019
+ MAC.APP. 947/2018 & CM APPL. 44446/2018
IFFCO TOKIO GEN INS CO LTD ..... Appellant
Through: Ms. Shantha Devi Raman and Ms.
Aishna Jain, Advocates.
versus
MITHLESH DEVI & ORS ..... Respondents
Through: Mr. S.N. Parashar, Advocate for R-1
to R-3.
Mr. R.R. Raju, Advocate for R-5.
(Mob.-9873879680)
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
1. The award of compensation dated 06.08.2018 passed by the learned
MACT in MACP No. 6200/16 is impugned on three grounds that: (i) there
was smell of alcohol in the breath of the deceased, as noticed by the
attending doctor and so recorded in the MLC, (ii) deceased‟s own brother-
in-law had stated to the police that the deceased was inebriated but was
talking normally, and (iii) the Site Plan of the accident indicates that there
was a „head-on-collision‟.
2. The Court would note that although the MLC records smell of alcohol
in the breath of the deceased, it does not certify the degree of alcohol in his
blood i.e. whether it was beyond the permissible limit or whether he was so
inebriated that he was not able to speak and/or was not conscious of his
actions or of his whereabouts. The mere recording of smell of alcohol in
the breath, would not necessarily mean that the driving skills of the driver
had gotten compromised. Although deceased‟s brother-in-law had told the
police that the deceased was inebriated, nevertheless, in the same statement
he said that the latter was talking normally. His statement to the police was
that "We reached immediately at hospital where my brother-in-law was
admitted. He was inebriated and talking normally...". Evidently, both the
expressions: i.e. of the deceased being inebriated and his talking normally,
are contradictory. Either he was inebriated or he was talking normally. This
statement was neither questioned by the appellant nor the said brother-in-
law was called for any examination by the insurance company. Therefore,
reliance on the same is misplaced.
3. The learned counsel for the appellant relies upon the accident Site
Plan to contend that it was a „head-on-collision‟. Apart from this statement,
the appellant is not able to show that it was a head-on-collision. Point „A‟ is
the place where the accident happened. Point „B‟ is the place where the
scooter landed after the accident, i.e. on the extreme left side of the road,
showing that the victim‟s vehicle was on the correct side of the road;
whereas, the offending vehicle/truck had struck it, in such a manner that it
landed at the place where it did or alternatively the offending truck was
being driven on the wrong side of the road. Therefore, there is no reason to
conclude that there was a „head-on-collision‟. Indeed the case of the
appellant is discussed in the impugned order as under:-
"Onus to prove this issue was upon the petitioners. To
prove the fact that victim suffered fatal injuries on account
of rash and negligent driving of respondent no. 1, petitioner
has examined PW2 Mr. Jagdish Prasad, who is stated to be
eye-witness of accident. PW2 has not at all been cross
examined by respondents no. 1 and 2. In his cross
examination, by Ld. Counsel for respondent no. 3, no
suggestion was put to the witness that accident had
occurred due to negligence of victim or it did not happen
due to rash and negligent on the part of respondent no. 1
nor there is any question with respect to manner in which
the accident had occurred. Respondent no. 1 even has not
examined himself to prove that accident did not happen with
his vehicle or he was not driving the vehicle rather it is
admitted fact that deceased died due to said accident.
Therefore the rash and negligent act on the part of
respondent no. 1 stands established. Further, the IO has
filed criminal case record which shows that respondent no,
1 was indicted by police for offences punishable under
Section 279/304A IPC. Respondent no. 1 did not approach
to any higher authority or any forum against his false
implication in this case. Apart from deposition of PW1, the
fact that deceased suffered fatal injuries in the accident is
also supported from his postmortem report, etc.
Considering all this, it stands proved that accident in
question occurred due to rash and negligent driving of
offending vehicle by respondent no. 1 and victim died due to
fatal injuries suffered in such accident."
4. The learned counsel for the appellant also relies upon the dicta of the
Supreme Court in Bijoy Kumar Dugar vs. Bidya Dhar Dutta and Others
(2006) 3 SCC 242, which held as under:-
"12. ... It is the evidence of Rajesh Kumar Gupta PW 2 who
was travelling in the Maruti car along with the deceased
Raj Kumar Dugar on the day of the accident that he also
suffered some injuries in the said accident. He stated that
while coming from Digboi, the Maruti car being driven by
the deceased met with an accident at a place near Kharjan
Pol. Before the accident, Raj Kumar Dugar noticed a
passenger bus coming from the opposite direction and the
movement of the bus was not normal as it was coming in a
zigzag manner. The Maruti car being driven by the
deceased Raj Kumar Dugar and the offending bus had a
head-on collision. MACT has not accepted the evidence of
PW 2 to prove that the driver of the offending bus was
driving the vehicle at abnormal speed. If the bus was being
driven by the driver abnormally in a zigzag manner, as PW
2 wanted the Court to believe, it was but natural, as a
prudent man, for the deceased to have taken due care and
precaution to avoid head-on collision when he had already
seen the bus coming from the opposite direction from a long
distance. It was head-on collision in which both the vehicles
were damaged and, unfortunately, Raj Kumar Dugar died
on the spot. MACT, in our view, has rightly observed that
had the knocking been on one side of the car, the negligence
or rashness could have been wholly fastened or attributable
to the driver of the bus, but when the vehicles had a head-on
collision, the drivers of both the vehicles should be held
responsible to have contributed equally to the accident. The
finding on this issue is a finding of fact and we do not find
any cogent and convincing reason to disagree with the well-
reasoned order of MACT on this point. MACT has awarded
interest at the rate of 10% per annum on the amount of
compensation from the date of filing of the claim
application till the date of payment. It is a discretionary
relief granted by MACT and, in our view, the discretion
exercised by MACT cannot be said to be inadequate and
inappropriate."
5. She further relies upon the dicta of the Supreme Court in Raj Rani &
Ors. vs. Oriental Insurance Co. Ltd. and Ors. (2009) 13 SCC 654, which
held as under:-
"17. So far as the issue of "contributory negligence" is
concerned, we may notice that the Tribunal has deducted
1/3rd from the total compensation on the ground that
deceased had contributed to the accident. The same, we
find, has been upheld by the High Court.
19. In this case, the truck was stationary. Some amount of
negligence on the part of the deceased cannot be ruled out.
Hence in the instant case, we find that there was
contributory negligence on the part of the deceased and
accordingly the claimant was entitled to only 50% of the
total amount of loss of dependency."
6. From the preceding discussion of the manner of the accident, it cannot
be deduced that the accident was „head-on-collision. The facts of Bijoy
Kumar Dugar (supra) and Raj Rani (supra), are differ from the present
case, therefore, reliance upon them is misplaced.
7. The appellant next contends is that minimum wages applicable to a
skilled workman was taken into consideration for computation of
compensation towards „loss of dependency‟, as the deceased was a driver of
TSR, while he held a driving licence for LMV. He did not hold a driving
licence for a TSR. The Court is of the view that the LMV‟s are ordinarily
four wheeled vehicles, the driving of such vehicles involves and requires a
different set of skills than driving three wheeler vehicles. Additionally,
plying of a TSR i.e. commercial three-wheeler vehicle, requires a different
set of skills apropos parking of the vehicle on the side of the road to
facilitate the boarding and alighting of passengers, alongwith familiarization
of other rules as specifically applicable to such commercial vehicles. In the
circumstances, the driver could not be treated as having the permit to drive a
TSR. However, insofar as he had a licence to drive a light motor vehicle
(LMV), it would include a non-commercial three wheeler. From the nature
of the accident and for the non-possession of the specific licence for driving
a commercial TSR, the degree of negligence cannot be deemed to be beyond
10%. The decision of the Supreme Court in Mukund Devangan (supra),
covers the field apropos driving licence for a reliable having weight of upto
7500 kgs. Therefore, 10% contributory negligence is fixed on driver, for
equivalent deduction from the awarded amount.
8. A person bearing a driving licence possesses a skill which is tested
and certified by the Road Transport Authority. The skill is certified by the
State, therefore, such person would be entitled to be classified as a skilled
workman. The claimant had stated that the TSR driver was earning his living
by plying a TSR commercially, but after the accident he is incapable to do
so. In the circumstances, the learned Tribunal has rightly taken into
consideration the minimum wages applicable to a skilled person. This
conclusion calls for no interference.
9. The Court would note that for non-pecuniary compensation, there is a
single compensation of Rs. 40,000/- towards „loss of love and affection‟.
However, in terms of the dicta of the Supreme Court in Magma General
Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors. 2018 SCC
OnLine SC 1546, each of the claimants are entitled to compensation towards
„loss of love and affection‟ @ Rs. 50,000/- and towards „loss of consortium‟
@ Rs. 40,000/-. It is so granted.
10. Accordingly, the total payable amount by the insurer would be as
under:
S.No. Particulars Amount
1. Loss of Dependency Rs. 17,98,917/-
(Rs.19,98,797/- less 10% )
2. Loss of love and affection Rs. 1,10,000/-
[Rs. 50,000 x 3 (claimants) less Rs.
40,000/- (already granted)]
3. Loss of consortium Rs. 1,20,000/-
[Rs. 40,000 x 3 (claimants)]
TOTAL Rs. 20,28,917/-
11. Let Rs. 20,28,917/-, alongwith interest @ 9% from the date of filing
of the petition till its realisation, be deposited before the learned Tribunal,
within three weeks from date of receipt of copy of this order, to be released
to the beneficiaries of the award in terms of the scheme of disbursement
specified therein.
12. Since the appellant has succeeded partially in the appeal, the statutory
amount, alongwith interest accrued thereon, be refunded. {{
13. The appeal is disposed-off in the above terms.
NAJMI WAZIRI, J
SEPTEMBER 26, 2019/RW
