Delhi High Court
Surendra Singh And Ors vs Sbi General Insurance Co Ltd And ... on 4 July, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 04th July, 2022
+ MAC.APP. 81/2021 & CM APPL. 5490/2021
SBI GENERAL INSURANCE CO LTD .....Appellant
versus
SURENDRA KUMAR SINGH & ORS ..... Respondents
AND
+ MAC.APP. 285/2021
SURENDRA KUMAR SINGH AND ORS .....Appellant
versus
SBI GENERAL INSURANCE CO LTD AND ORS...... Respondents
Advocates who appeared in this case:
Advocate for : Mr. Amit Kumar Maihan, Advocates for SBI General
Insurance Co. Ltd.
Advocate for: Mr. Pankaj Kr. Deval, Advocate for respondent in
MAC.APP. 81/2021 and for appellants in MAC.APP.
285/2021
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J.
1. These appeals emanate out of an award dated 21.07.2020
whereby the claim petition filed by the wife, daughter, father and
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mother of the deceased have been allowed.
2. MAC. APP. 81/2021 is an appeal by the insurance company of
the offending vehicle impugning the award whereas MAC. APP.
285/2021 is an appeal by the claimants seeking enhancement of
compensation.
3. As per the claim petition, the deceased Mantu Kumar Singh,
along with one Ashish was going to Haridwar from his home in an
Innova car. The Innova car was being driven by the deceased Mantu
Kumar Singh and at about 4.30 a.m. when the Innova car reached near
Mool Chand Hotel, Mansoor Pur, U.P., the offending vehicle a tractor
trolley being driven by his driver at a very high speed, rashly and
negligently without blowing any horn and neglecting the traffic rules
suddenly stopped in the middle of the road whereby the Innova car
smashed into the said tractor-trolley. As a result of the impact, the
deceased was sandwiched in the said car and sustained fatal injuries.
4. The contention of learned counsel for the appellant-insurance
company is that the offending vehicle - a tractor-trolley was
stationary on the road due to puncture and the deceased rammed his
Innova car and as such the deceased contributed to the accident and
was himself grossly negligent.
5. It is further contended on behalf of the appellant-insurance
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company that the tractor was not being used for agricultural purposes
but was being used for commercial purposes and as such the same was
being used in contravention to the terms of the insurance policy and
thus the insurance company is absolved of its liability.
6. Learned counsel for the appellant-insurance company further
contends that the manner in which the accident had taken place clearly
establishes that the Innova car was being driven at a very high speed.
7. Per contra, learned counsel appearing for the claimants submits
that there is no material on record to show any negligence on the part
of the deceased. It is further contended that the vehicle had suddenly
stopped on the road and there was no indication or warning sign
placed to show that the vehicle had broken down.
8. It is contended by learned counsel for the claimants that the
accident had taken place on a highway where the vehicles are
expected to be driven at reasonably fast speed. He further submits that
there is no material on record to show that the speed of the Innova car
was excessive.
9. In support of the claim petition, claimants had produced Ashish
who was in the Innova car with the deceased as an eye-witness. In his
evidence, Ashish had deposed that the Innova card was being driven
by the deceased Mantu Kumar Singh slowly and vigilantly and on the
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correct side of the road. He has further deposed that the offending
vehicle i.e. tractor-trolley had stopped in the middle of the road
without any indication.
10. In his cross-examination, he has deposed that the Innova car
was being run at about 40-45 kms at the time of the accident. He has
deposed that the tractor-trolley was standing in the middle of the road
without any blinkers.
11. There is no cross-examination of the said witness Ashish to
establish that the Innova car being driven by the deceased was being
driven at a very high speed. Rather the evidence has come on record
that the Innova car was being driven at a speed of about 45-50 km per
hour and that the offending tractor-trolley had suddenly stopped in the
middle of the road without any indication and there were no blinkers
or precautionary lights affixed on the same.
12. The driver of the offending vehicle - Vikas Kumar has also
stepped into the witness box, in his examination-in-chief, has not
stated anything about the manner in which the accident had taken
place rather he has stated that he always drives the vehicle in a normal
speed obeying all traffic rules. He has merely stated that the vehicle
of the deceased had hit the stationary tractor trolley from the rear side
and since the vehicle of the deceased had hit the offending vehicle
from the rear side, he had stated that, he cannot be held liable for
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negligence.
13. Apart from stating his opinion, he has not made any factual
averments about the manner in which the accident had taken place.
However, in his cross-examination, he stated that the reflectors were
pasted on the rear side of the trolley. He has deposed whenever they
carry sugarcane, they affix reflectors on the rear side.
14. In his cross-examination, he stated that he had mentioned to his
Advocate that his trolley had been punctured and thus he was standing
on the road.
15. A perusal of the affidavit shows that there is no such mention in
the affidavit either of the owner or the driver of the offending vehicle
to establish that the tractor-trolley was punctured and was stationary
on the road because of the same.
16. Further perusal of the mechanical inspection report of the
tractor-trolley does not show any mention of any light or indicator
having been affixed on the trolley.
17. Even if assuming the vehicle had broken down, it was
obligatory on the part of the driver of the vehicle to ensure that the
vehicle is moved to a safe location and is not permitted to stand in the
middle of the road. Further, if the vehicle could not have been moved
then it was obligatory on the part of the driver of the vehicle that had
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broken down, to ensure that there are sufficient safeguards and
indications in place to warn other drivers so as to ensure that no
accident happens.
18. In case, no precaution is taken, as has come on record in this
case, negligence would lie with the offending vehicle particularly
when the accident occurs on a national highway.
19. The Tribunal in the impugned award has gone on the basis of
preponderance of probabilities and has also noticed that an FIR has
been registered under Section 279/338/304-A IPC against the driver
of the offending vehicle and chargesheet has also been filed after an
investigation.
20. Involvement of the two vehicles is not in dispute. Particularly in
view of the fact that no contra material has been placed on record to
show that there was any negligence on the part of the deceased, it
cannot be held that there is any infirmity in the view taken by the
Tribunal that the accident occurred solely on account of the
negligence on the part of the driver of the offending vehicle.
21. Further as noticed hereinabove, no material has come on record
to show that the deceased had contributed to the accident or was
contributorily negligent.
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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
as the vehicle being drive by the deceased had hit the tractor trolley
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 car being driven by the deceased was being driven in
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MAGGU
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a rash and negligent manner. On the other hand the evidence that has
come on record is that the offending vehicle i.e., tractor trolley was
stopped in the middle of the road without sufficient indications or
blinkers, resulting in the accident.
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. Coming to the argument of learned counsel for the insurance
company that the insurance company is absolved of its liability
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because the tractor trolley was being used for commercial purposes, it
may be noticed that there is no material on record to show that the
vehicle i.e. tractor-trolley was being used for commercial purposes.
30. The categorical evidence as well as the testimony of the
witnesses on record shows that the tractor-trolley was being used for
transportation by the insured for his personal agricultural purposes.
31. With regard to the appeal of the claimant seeking enhancement,
it may be noticed that the deceased was born on 25.07.1985 and the
accident took place on 07.02.2016. The age of the deceased on the
date of the accident was 30 years and six months i.e. less than 31
years.
32. The Supreme Court, in Salra Verma & Ors. Vs. Delhi
Transport Corporation & Anr. 2009 6 SCC 121, has held that a
multiplier of 17 is to be used for the age group 26 - 30 years and a
multiplier of 16 has to be used for the age group 31 - 35 years.
33. For persons below the age of 31 i.e. upto the age of 26, a
multiplier of 17 is to be used. In the present case, the Tribunal has
used the multiplier of 16 which is to be used in cases where the age is
above 31 years. As noticed herein above, the deceased was less than
31 years of age and consequently the multiplier of 17 should have
been used.
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34. Further, the Tribunal has taken the wages of an unskilled
worker. Admittedly, the deceased was holding a driving licence and as
such is to be treated as skilled work and the wages of skilled worker
have to be taken. Consequently, the wage of a skilled worker i.e. Rs.
10,795/- per month has to be taken instead of Rs. 9,178/- per month as
taken by the Tribunal.
35. Further, it may be noticed that the Tribunal has not awarded
Loss of Consortium in accordance with the judgment of the Supreme
Court in United India Insurance Company Ltd. Vs. Satinder Kaur @
Satwinder Kaur (2021) 11 SCC 780. Consequently, each of the
claimants are entitled to a sum of Rs. 40,000/- each under the head
'Loss of Consortium'.
36. In view of the above, the appeal being MAC. APP. 81/2021
filed by the insurance company is dismissed and the appeal of the
claimants being MAC. APP. 285/2021 is allowed to the extent above
i.e. multiplier to be taken as 17, the wages to be computed at Rs.
10,795/- per month and Loss of Consortium at Rs. 40,000/- per
claimant.
37. The matter shall be listed before the concerned Tribunal on
25.07.2022 for making a fresh computation in accordance with the
judgment herein. Insurance company shall thereafter deposit the
remaining amount with the Tribunal within four weeks. Tribunal shall
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disburse the awarded amount along with the enhanced amount as per
the scheme of disbursal contained in the impugned award dated
21.07.2020.
38. The appeals are disposed of in the above terms.
SANJEEV SACHDEVA, J
JULY 04, 2022
rs
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MAGGU
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to HMJ Sanjeev Sachdeva.
