Delhi High Court
Shriram General Insurance Co Ltd vs Nisha Devi & Ors on 24 April, 2024
Author: Dharmesh Sharma
Bench: Dharmesh Sharma
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 06 March 2024
Judgment pronounced on : 24 April 2024
+ MAC.APP. 631/2014
SHRIRAM GENERAL INSURANCE CO LTD ..... Appellant
Through: Mr. Sameer Nandwani, Mr.
Sarthak Arora & Ms. Niyati
Jadaun, Advs.
versus
NISHA DEVI & ORS ..... Respondents
Through: Mr. T.N. Tripathi, Mr. Ranjeet
Singh & Mr. Pragyesh Pratap
Singh, Advs.
CORAM:
HON'BLE MR. JUSTICE DHARMESH SHARMA
JUDGMENT
1. The appellant/Insurance Company has preferred this statutory
appeal under Section 173 of the Motor Vehicles Act, 19881 as
amended up to date, challenging the impugned judgment-cum-award
dated 05.03.2014 passed by the learned Presiding Officer, Motor
Accident Claims Tribunal2, South District, Saket Courts, New Delhi,
whereby the respondent No.7 herein was held to be guilty of rash and
negligent driving of the offending truck bearing registration No.HR-
55-B-6988, registered in the name of respondent No.8 herein.
Furthermore, the claim for the compensation filed by the claimants,
who are the wife, four children and father of the deceased under
M.V. Act
Tribunal
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Section 166 read with Section 140 of the M.V. Act, was allowed. The
claimants were awarded a total compensation of Rs.21,38,900/- with
interest @ 9% p.a. from the date of filing of the petition till realisation
on account of the death of Santosh Kumar involving the aforesaid
truck.
2. Having heard the learned counsel for the appellant/Insurance
Company and learned counsel for respondents No.1 to 6/claimants at
the Bar and on perusal of the record, this Court proceeds to decide the
present appeal.
ANALYSIS & DECISION:
3. At the outset, Mr. Sameer Nandwani, learned counsel appearing
for the appellant/Insurance Company, has urged that the deceased was
a "gratuitous passenger" and, therefore, the Insurance Company is
not liable to pay compensation to the claimants. Learned counsel took
this Court through the testimony of PW-1/Smt. Nisha Devi, wife of
the deceased, and pointed out that she was not an eye-witness to the
accident. It was submitted that PW-2/Daya Ram was the employer of
the deceased Santosh Kumar, who was also not an eye-witness to the
accident, while PW-3/Akhilesh Kumar was produced and examined as
an eye-witness. It was urged that the deceased Santosh Kumar was
employed by PW-2, and he was a co-driver with PW-3, and they had a
sudden fight, and the deceased in the process of fleeing away,
attempted to climb on the left side of the offending truck bearing
registration No.HR-58-B-6988 as a gratuitous passenger. It was
vehemently urged that there is no iota of evidence, as to in what
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capacity the deceased was on the offending truck as he was neither the
driver nor the cleaner in respect of the offending truck.
4. Per contra, learned counsel for the claimants alluded to the
observations made by the learned Tribunal while deciding issue No.1
regarding the factum of the accident and the finding on the issue as to
whether the respondent No.7/Desh Raj was guilty of rash and
negligent driving of the offending truck. It would be apposite to
reproduce the reasons that prevailed in the mind of the learned
Tribunal while holding the factum of accident having being
established, as also the culpability of respondent No.7/Desh Raj,
which reads as under:
"10. PW-1 has stated that on 16.11.12 at about 4.00 PM at Bhati
Road, Arya Bhat Tiraha, Delhi her husband was climbing in the
truck no. HR 55 B 6988 from the left side. Suddenly, the
respondent no.1 drove his truck rashly and negligently. As a result
her husband fell down on the road and came under the wheel of the
offending vehicle. He was removed to Trauma Center, AIIMS
where doctor declared him brought dead. A case vide FIR no.
283/12 u/s 279/304-A IPC was registered against the respondent
no.1.
In her cross-examination she admitted that she is not an
eye-witness of the accident. She denied that the accident had taken
place due to the negligence of deceased himself. She denied that
her husband had not got the permission from the driver of the
offending vehicle to climb on the offending vehicle. She denied
that the driver of the offending vehicle was not aware that
somebody was trying to climb on to the truck from the left
window. She denied that the deceased was a gratuitous passenger.
11. PW-3 Akhilesh Kumar has stated that on 16.11.12 at about 4.00
PM he was standing at main road at Fateh Pur Berl. He saw the
deceased Santosh Kumar boarding the truck bearing no. HR 55 B
6988 from left side. All of a sudden the driver moved the said truck
in a rash and negligent manner. The hand of the deceased Santosh
Kumar slipped and he fell down. The left wheel of the truck ran
over the head of the deceased. People gathered at the spot.
Someone called at 100 No. PCR reached at the spot. They took the
deceased to the hospital. Police took him to the police station on
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the same day and recorded his statement. The case was registered
on his statement.
In his cross-examination he stated that he knew the driver
Desh Raj prior to the accident. He denied that a quarrel took place
between him and the driver Desh Raj prior to the accident. He was
standing about 50 meters away from the spot.
In the instant case a Detailed Accident Report is also filed
by the SHO of PS Fateh Pur Bert. Perusal of it shows that the case
was registered on the statement of PW-3. He has deposed the same
facts. Charge sheet was also filed against the respondent no.1. As
per the postmortem report the cause of death was shock as a result
of crush injury to the head. All injuries are antemortem in nature
and could be caused due to road traffic accident.
For the foregoing discussions, it is established that Santosh
Kumar died of the injuries sustained in an accident took place on
16.11.12 at about 4.00 PM at Bhati Road, Arya Bhat Tiraha, Delhi
due to rash and negligent driving of the vehicle bearing no. HR 55
B 6888 by respondent no.1. Document show that the vehicle was
owned by respondent no.2 and it was Insured with respondent
no.3/insurance company.
12. Issue no.1 is accordingly decided in favour of the
petitioners and against the respondents."
5. The aforesaid reasons have to be examined in the light of
testimony of the witnesses examined during the course of
proceedings/trial. Indeed, PW-1 and PW-2 are not eye-witnesses to the
accident; however, PW-3/Akhilesh Kumar categorically deposed that
the deceased/Santosh Kumar was trying to board the offending truck
bearing registration No.HR-55-B-6988, from the left side, when all of
a sudden, the driver of the said truck drove it in a reckless manner. As
a consequence, Santosh Kumar slipped and fell down, and the left
wheel of the truck ran over his head, causing his death on the spot.
Interestingly, PW-3 was not cross-examined on behalf of the
appellant/Insurance Company despite affording an opportunity.
Although, PW-3 was examined by the learned counsel for respondents
No.1 and 2, he was merely given a suggestion that a quarrel had taken
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place between him and driver/Desh Raj prior to the accident. On being
prodded in his cross-examination, he deposed that he was about 50
metres from the spot, and his own vehicle was parked about 200
metres away from the spot. He was not prodded about how and in
which manner the deceased attempted to climb over the roof or the
cabin of the offending truck bearing registration No. HR-55-B-6988.
The appellant/Insurance Company had an opportunity to summon
respondent No.7/Desh Raj, S/o Ram Bahadur, but they did not do so
at their own peril. There is no denying the fact that the offending truck
was involved in the accident.
6. At the cost of repetition, in the aforesaid backdrop, respondent
No.7/Desh Raj was the best witness, who was not summoned and
examined by the appellant insurance company. Indeed, it has not been
made clear that, as to in what capacity the deceased was connected
with the offending truck, but certainly, it is a far-cry in the wilderness
that he was a gratuitous passenger. There is no merit in the plea that
the offending truck was registered as a commercial goods vehicle and
the cabin was meant for only two persons, including the driver.
7. Be that as it may, a bare perusal of the printed/computerised
policy of insurance dated 26.01.2012 marked Ex. R3W-1/B (also
PW1/7) would show that it was a „comprehensive policy‟ covering
third party risks as well as risks towards two drivers and one cleaner.
There is nothing in the policy of insurance excluding insurance cover
to any other person. At this juncture, there is another interesting twist
in the entire tale when it is seen that the initial handwritten cover note
provided for insurance of the offending vehicle No. 3099108 dated
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20.01.2012 with regard to the offending vehicle bearing registration
No. HR55-B-6988 indicates the basic liability clause/table as under:-
A. Own Damage B. Liability
Basic OD 6523 TP Premium 10550
Elec. Accessories 3510 PA to owner driver 100
Non Elec. LL to paid driver 25
Accessories Passenger
Employee
CNG/LPG Kit Total 10725
Discount 20% 2007 Net Premium (A+B) 15139
Loading S.T. 1559
NCB NCB 3612 Final Premium 16698
Total 4414
8. It is interesting to point out that Rs. 50/- in the handwritten note
is neither directly across the passenger nor the employee but in the
middle. Therefore, unhesitatingly this Court finds that even assuming
for the sake of convenience, that victim was a gratuitous passenger, he
was covered by the Insurance Policy and the appellant/insurance
company cannot escape its financial liability. Reference can be
invited to decision by the Three Judges Bench of the Supreme Court
in the case of Amrit Lal Sood v. Kaushalya Devi Thapar3, a
decision by the Three Judges Bench of the Supreme Court, wherein it
was categorically held that the terms of contract of insurance can be
wider than what is prescribed by statute. Nothing precludes the
3 (1998) 3 SCC 744
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insurer from agreeing to indemnify the insured against all sums which
the insured would become legally liable to pay in respect of death of
or bodily injury to any person and any person would include
gratuitous passenger as well.
9. In view of the foregoing discussion, I find that there is no merit
in the plea that the deceased was a gratuitous passenger and travelling
in the offending vehicle. There is no dispute raised with regard to the
quantum of compensation awarded by the learned Tribunal. Evidently,
the deceased was found to be 30 years of age, and his annual income
was fairly assumed to be Rs.8,814/- p.m. as per scales of minimum
wages provided for a skilled persons during the relevant time. 50%
was added to the income of the deceased for computing future
prospects, and a multiplier of 16 was applied. More or less, the
amount of compensation has been awarded in a fair and just manner,
itemising towards loss of financial dependency, loss of love and
affection and loss of consortium besides funeral expenses and loss of
estates. Although it may be stated that the compensation of loss of
love and affection has not been approved by the Supreme Court in the
case of National Insurance Co. Ltd. V. Pranay Sethi4. However,
considering that there were six dependents of the deceased including
father, if the loss of consortium/loss of love and affection is assumed
@ Rs.14,000/- p.m., the total amount comes to Rs.2 lacs only.
10. In view of foregoing discussion, I find that the learned Tribunal
has not committed any illegality, perversity nor had adopted an
incorrect approach in law.
4 (2017) 16 SCC 680
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11. The present appeal is dismissed. Interim order dated 18.07.2014
passed by this Court is hereby vacated. A sum of Rs.12 lacs have
already been released to the respondents No.1 to 6/claimants. The
balance amount of compensation with interest @ 9% p.a. be released
to the claimants from the date of filing of the present petition till
realisation. The balance amount be deposited with the learned
Tribunal within four weeks from today, failing which the
appellant/Insurance Company shall be liable to pay the same with
penal interest @ 12% p.a. from the date of this judgment till
realisation.
12. In view of the aforesaid, the amount of Rs. 25,000/- towards the
statutory deposit for filing of the appeal by the appellant/Insurance
Company be refunded back to the appellant/Insurance company.
DHARMESH SHARMA, J.
APRIL 24, 2024
Sadiq
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