Delhi High Court
Hdfc Ergogeneral Insurance Co Ltd vs Usha Sharma & Ors on 4 July, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 04th July, 2022
+ MAC.APP. 977/2018 & CM APPL. 39785/2021
HDFC ERGOGENERAL INSURANCE CO LTD ... Appellant
versus
USHA SHARMA & ORS ..... Respondents
Advocates who appeared in this case:
For the Appellant: Mr. A.K. Soni, Advocate for the insurance company.
For the Respondent: Mr. Pankaj Kr. Deval, Advocate.
+ MAC.APP. 115/2020
USHA SHARMA &ORS ..... Appellant
versus
HDFC ERGO GENERAL INSURANCE CO LTD... .. Respondents
Advocates who appeared in this case:
For the Appellant: Mr. Pankaj Kr. Deval, Advocate.
For the Respondent: Mr. A.K. Soni, Advocate for the insurance company.
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J.
1. MAC Appeal 977/2018 is an appeal filed by the insurance
company (insurer of the offending vehicle) impugning judgment dated
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MAGGU
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03.08.2018, whereby claim petition filed by respondents No.1 and 2
i.e., mother and father of the deceased have been allowed and
compensation awarded.
2. MAC Appeal 115/2020 are cross-objections on behalf of the
mother and father of deceased, seeking enhancement of the awarded
compensation.
3. On 01.04.2012, one Siddharth Sharma (since deceased) was
going on his motorcycle to receive his brother, Anubhav Sharma at
Atul Kataria Chowk, Sector-14, Gurgaon.
4. At about 9.30 A.M., when he reached Atul Kataria Chowk near
Huda Nursery, Sector-14, the offending vehicle, a recovery van,
which was being driven by its driver (respondent No.3 herein) at a
high speed, rashly and negligently and without following any traffic
rules, suddenly applied brakes, due to which the motorcycle of the
deceased collided with the offending vehicle and as a result of the
impact, he fell down on the road and sustained injuries. He was taken
to Max Hospital, Gurgaon, where despite treatment, he expired on
03.04.2012.
5. The Tribunal relying upon the testimony of the brother of the
deceased, who had appeared as an eye witness and deposed to the
factum of the accident, held the driver of the offending vehicle
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responsible for causing the accident on account of the rash and
negligent driving and consequently, held the claimants entitled to
compensation.
6. The challenge to the award by the insurance company primarily
is on the ground that as the deceased riding on his motorcycle had
struck the recovery van from behind, he was himself negligent and the
cause of the accident and as such, his legal heirs are not entitled to any
compensation, other than the statutory compensation.
7. It is further contended on behalf of the appellant that the
testimony of the brother, who claims to be an eye witness is not
dependable, for the reason that it has not been established that he was
present at the site and is an interested witness. His testimony is sought
to be impeached on the ground that he is a planted witness as his name
is not even mentioned in the medical report of the accident. Reliance
is placed on the MLC, wherein it is recorded that the deceased was
brought to the hospital by the police. It is contended that as the name
of the brother is not mentioned in the case history, it is not believable
that he was present at the site and is thus, a planted witness.
8. In support of the claim petition, the claimant i.e., mother of the
deceased, examined herself as a witness besides examining the brother
of the deceased who appeared as PW-2 as well as the Senior Manager,
Administration from the organization where the deceased was
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employed.
9. To rebut the claim of the claimants, the insurance company has
only examined a Clerk from the Road Transport Authority (RTA).
10. At this juncture, it would be necessary to refer to the testimony
of Anubhav Sharma, the brother of the deceased, who has appeared as
eye witness. He, in his affidavit by way of evidence, has deposed as
under:-
"2. I say that on the most unfortunate morning of
01/04/12, my deceased brother. Siddharth Sharma was
coming on his motorcycle- No. HR-26AZ-8107 driving
vigilantly and correct side of the road, to receive me. I
was waiting for him at Atul Katariya Chowk, Sec. 14,
Gurgaon. At about 09:30 am when he reached Near Atul
Kataria Chowk near Hudda Nursery, Sec.14, Gurgaon in
the meanwhile the offending vehicle No. HR-550-8043
(Recovery Van), which was being driven by the driver I
respondent No. l at a very high speed, rashly, negligently,
without giving any indication, neglecting the traffic rules
ahead of the deceased and suddenly applied- the break
due to this the motorcycle of deceased collided with the
offending vehicle. As a result of this violent impact he fell
down on the road and sustained fatal injuries.
3. I say that the police came on the spot and the
deceased was taken to Max Hospital, Gurgaon by the
police. I was accompanied the police when my brother
was taken to the Max Hospital. He was admitted in the
Max Hospital, where during the treatment the deceased
was expired on 03/04/12 and his post-mortem was
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conducted at mortuary of the General Hospital,
Gurgaon, Haryana. The dead body of the deceased has
been taken by the petitioners and his relatives after post-
mortem.
4. I say that after the accident the driver of the
offending vehicle No. HR-55G-8043 (Recovery Van)
stopped his vehicle near the place ofaccident and fled
from the spot, offending vehicle No. fiR.-55G-8043
(Recovery Van) was stationery near the spot.
5. I say that the Police recorded my statement the in
the Max Hospital, Gurgaon regarding the accident. The
offending vehicle was seized stationery near the place of
incident-in my presence. I can identify the driver of the
offending vehicle who caused the above said accident.
6. I say that the accident took place due to the rash
and negligent driving of the offending vehicle No. .HR-55
G-8043 (Recovery Van) which came ahead of the
motorcycle of the deceased and suddenly applied the
brakes. Case F.I.R. No.173/12, U/S- 279/337/338 IPC
has been registered at P.S. Civil Line Gurgaon against
the driver on my statement."
11. It may be noticed that in his examination-in-chief, the witness
has categorically stated that he was waiting for his brother at Atul
Kataria Chowk and had noticed that the offending vehicle was being
driven at a very high speed, rashly and negligently and neglecting
traffic rules and had suddenly applied the brakes. Witness has further
deposed that the driver of the offending vehicle had fled from the
spot.
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MAGGU
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to HMJ Sanjeev Sachdeva.
12. Reference may also be had to the cross-examination done on
behalf of the insurance company, which is very brief and is as under:-
"XXXXX by Shri M.P. Shahi, counsel for insurance
company.
I am working in I Yogi Company for the last about
two years. The width of the single road is about 30-35
feet and two trucks and one car can easily move on that
road. It was a double road having divider in between.
I was waiting near Hooda Nursery. I am eye
witness to the accident and same has happened in my
presence. Truck was moving on left side of the road. It is
correct that my brother hit the truck from behind. Vol.
The truck had applied sudden brakes. My brother
sustained injuries on the head and 9rms. My brother was
wearing helmet at that time. Police had seized· the
helmet. It is wrong to suggest that my brother was not
wearing any helmet at the time of accident. There were 2-
3 vehicles on the road. It is wrong to suggest that
accident had occurred due to negligence of my brother. It
is wrong to suggest that truck driver had not applied
brakes suddenly. There was sufficient space from the
right side of the truck for passing of vehicle. It is wrong
to suggest that there was no fault of driver of the truck in
the accident. It is wrong to suggest that I have filed
wrong affidavit or I have deposed falsely."
13. It may be noticed from the above cross-examination that apart
from putting general questions, there is no specific cross-examination
of the said witness. The cross-examination does not in any manner
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shake the evidence given in affirmative by the said witness. It does
not contradict the assertions made in the examination-in-chief that the
driver of the offending vehicle was driving the vehicle in a rash and
negligent manner, disregarding the traffic rules and had suddenly
applied brakes.
14. The only evidence led by the insurance company is that of a
Clerk of the RTA with regard to the permit of the offending vehicle.
15. There is consequently no material on record to contradict the
testimony of the brother of the deceased, who had appeared as an eye
witness and deposed as to the manner in which the offending vehicle
was being driven and the manner in which accident occurred. There is
no other ground to disbelieve the testimony of the said witness.
16. The contention of learned counsel for appellant/insurance
company to the effect that the name of the brother is not mentioned in
the MLC form as having taken the brother to the hospital is of no
consequence for the reason that the admitted position is that the
officers of the police had reached the spot and had taken the deceased
to the hospital.
17. The fact that a police officer had taken the deceased (then
injured) to the hospital and his name is mentioned in the MLC does
not in any manner establish that the brother of the decease had not
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MAGGU
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accompanied the police officers to the hospital.
18. It is obvious that when a police officer had taken the injured to
the hospital, the attending staff and doctors at the hospital would give
more credence to the presence of the police officer and record his
presence in the MLC rather than recording the names and details of
the family members who may be accompanying the injured to the
hospital.
19. This fact alone is not sufficient to return a finding that the
brother of the deceased was not present at the spot and had not
witnessed the accident, particularly, when there is no credible cross-
examination of the brother to shake his testimony.
20. The presence of the brother is also established from the fact that
the FIR of the accident was registered on the complaint of the brother
and he has been shown as eye witness in the said FIR.
21. The FIR as well as the proceedings thereon corroborate the
testimony of the brother that he was an eye witness and had witnessed
the accident and the manner in which the accident occurred.
22. Reliance placed by the learned counsel for appellant on the
judgment of the Supreme Court in Nishan Singh & Ors. Vs. The
Oriental Insurance company Ltd., (2018) 6 SCC 765 to contend that
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as the motorcycle of the deceased had hit the vehicle from behind, the
deceased was not maintaining sufficient distance, is misplaced.
23. Said judgment does not help the case of the appellant. In
Nishan Singh (supra), the Maruti car had hit a truck from behind. The
findings recorded by the Tribunal, as affirmed by the High Court,
were that evidence had established that the Maruti car was being
driven in a rash and negligent manner and was the cause of accident,
resulting in the death of the one of the passengers in the in the Maruti
car.
24. It had also come on record that the driver of the Maruti car was
not maintaining sufficient distance between the truck as well as the
car. It was in those circumstances that the Supreme Court referring to
Regulation 23 of the Rules of the Road Regulations, 1989 that
maintaining a distance of 10 to 15 feet was not a safe distance. It was
in those circumstances that the Supreme Court held that the driver of
the Maruti car must take the blame.
25. In the present case, there is no such evidence or finding
returned that the motorcycle being ridden by the deceased was being
ridden in a rash and negligent manner or that he was not maintaining
sufficient distance. On the other hand the evidence that has come on
record is that the offending vehicle i.e., recovery van was being driven
in a rash and negligent manner, disregarding the rules of traffic and
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MAGGU
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to HMJ Sanjeev Sachdeva.
the driver of the offending vehicle had suddenly applied brakes,
resulting in the accident and thereafter had fled from the spot leaving
the vehicle.
26. Further, reliance placed by the learned counsel for appellant on
the judgment of the Supreme Court in Raj Rani Vs. Oriental
Insurance Co. Ltd., (2009) 13 SCC 654 to contend that where the
deceased dashed against a stationery truck, some amount of
negligence on the part of the deceased could not be ruled out, is also
misplaced.
27. In Raj Rani (supra), there was a categorical finding by the
Tribunal holding the deceased to be contributory negligent and the
Tribunal had deducted 1/3rd from the total compensation on the
ground that the deceased had contributed to the accident.
28. However, as noticed hereinabove, in the present case, there is
no finding or evidence on record to show that deceased was negligent
in any manner so as to reduce the compensation on the ground of
contributory negligence. Said judgment also does not help the case of
the appellant.
29. As noticed hereinabove, there is no material or evidence on
record to disbelieve the testimony of the brother or to hold that the
brother was not present at the site and accident had not occurred in the
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MAGGU
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manner as deposed by him. Consequently, there is no infirmity in the
impugned award holding the driver of the offending to be the cause of
accident which occurred on account of his rash and negligent driving.
The appeal of the insurance company (MAC APP 977/2018) is
accordingly dismissed.
30. In the cross-objections (MAC APP 115/2020) claimants have
sought enhancement of compensation. It is contended on behalf of the
claimants that the Tribunal has erred in awarding 'future prospects' at
only 50%, whereas the 'future prospects' should be enhanced to
100%.
31. Reliance is placed on the judgment of the Supreme Court in
Sureshchandra Bagmal Doshi Vs. The New India Assurance Company
Ltd. &Ors., (2018) 15 SCC 649.
32. It may be noticed that the Tribunal has relied upon the
judgment of the Supreme Court in Sarla Varma & Ors. Vs. DTC &
Anr., (2009) 6 SCC 649.
33. The Constitution Bench of the Supreme Court in National
Insurance Company Ltd. Vs. Pranay Sethi &Ors.(2017) 16 SCC 680
approved the view taken in Sarla Varma (supra) that 50% of the
salary of the deceased should be taken towards future prospects.
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to HMJ Sanjeev Sachdeva.
34. In Sureshchandra Bagmal Doshi (supra), the Court had taken a
view that there was no bar to future prospects being taken at a higher
level than 50%. This observation, however, is qualified and the
Supreme Court has held that there is no bar in taking the future
prospects at a higher level where the assessment is based on actual
evidence led to the satisfaction of the Tribunal or the Court that the
future prospects were higher than the standard percentage.
35. In Sureshchandra Bagmal Doshi (supra), the Court had taken a
higher percentage in a case where there was actual evidence led to
show that future prospects in fact were higher than the standard
percentage. It is only in those circumstances where such material is
made available to the Tribunal or the Court that future prospects may
be taken at a higher level.
36. In the present case, there is no evidence on record that the
future prospects in fact were higher than the standard percentage of
50%. In the absence any evidence being placed on record to show
that future prospects in fact were higher than 50%, no infirmity can be
found in the impugned award, taking future prospects only at 50%.
37. In view of the above there is no merit in the cross-objection
seeking enhancement of compensation under the head of 'loss of
income'.
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Digitally Signed By:KUNAL
MAGGU
Signing Date:08.07.2022 21:02:41
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
38. However, perusal of the impugned award shows that no amount
has been granted under the head of 'loss of consortium'.
Consequently, applying the ratio of the judgment of the Supreme
Court in United India Insurance Company Ltd. Vs. Satinder Kaur
@Satwinder Kaur, (2021) 11 SCC 780, a sum of Rs. 40,000/- each is
awarded to each of the claimants.
39. Consequently, while upholding the award on merits as well as
on assessment of compensation towards 'loss of income', the award is
modified to the limited extent that a sum of Rs.40,000/- each in
addition, shall be awarded to the claimants i.e., respondents No.1 and
2 under the head of 'loss of consortium'. The appeal of the claims is
disposed of accordingly.
40. The amount deposited with the Registry be disbursed to the
claimants as per the scheme of disbursal mentioned in the impugned
award. The enhanced amount along with interest @ 9% per annum
from the date of filing of the petition be deposited with the Tribunal
within four weeks. On deposit of the enhanced amount, the same
shall be disbursed by the Tribunal along with interest accrued thereon
to the claimants.
SANJEEV SACHDEVA, J
JULY 04, 2022/NA
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:08.07.2022 21:02:41
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
