Punjab-Haryana High Court
(O&M) Icici Lombard General Insur. Co. ... vs Rajbala And Ors on 5 January, 2024
Author: Alka Sarin
Bench: Alka Sarin
FAO No.1506 of 2008 1 2024:PHHC:000686
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
204 FAO No.1506 of 2008
Date of Decision : 05.01.2024
ICICI lombard General Insurance Co. Ltd. .....Appellant
VERSUS
Rajbala and Others ....Respondents
204-1 FAO No. 4938 of 2008
Date of Decision : 05.01.2024
Rajbala .....Appellant
VERSUS
General Manager, Haryana Roadways and Others ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Punit Jain, Advocate
for the appellant-Insurance Company in FAO-1506-2008 and
for respondent No.4 in FAO-4938-2008.
Mr. J.P. Dhull, Advocate
for the appellant in FAO-4938-2008 and
for respondent No.1 in FAO-1506-2008.
Mr. Saurabh Girdhar, AAG Haryana
for respondent Nos.2 to 4 in FAO-1506-2008 and
for respondent Nos.1 to 3 in FAO-4938-2008.
ALKA SARIN, J. (Oral)
1. The present appeals have been filed by the Insurance Company
as well as the claimant being FAO-1506-2008 and FAO-4938-2008
respectively, challenging the award dated 02.01.2008 passed by the Motor
Accident Claims Tribunal, Kaithal (hereinafter referred to as the 'Tribunal').
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2. The brief facts relevant to the present case are that the claimant,
who is mother of Manoj Kumar, had filed a claim petition on account of
death of Manoj Kumar (hereinafter referred to as the 'deceased') in a motor
vehicular accident on 07.07.2006. It was averred in the claim petition that
the deceased, along with Vikas and Ajay Kumar on one motorcycle and
Naresh Pal and Sanjay Kumar on another motorcycle, went to their relation
at Bilaspur and in the evening when they were returning on their respective
motorcycles and had just crossed village Badhehri at about 05.30 pm, a bus
bearing registration No.HR-58-8847 (hereinafter referred to as the
'offending vehicle') of Haryana Roadways Yamunanagar Depot came from
Jagadhari side, which was being driven by Mohinder Singh (arrayed as
respondent No.3 and respondent No.4 in both the appeals) in a rash and
negligent manner and struck against the motorcycle of the deceased. In the
accident, Manoj Kumar (the deceased) and Vikas died at the spot and Ajay
Kumar received serious and multiple injuries. Regarding the said accident a
criminal case was also registered. Written statement was filed on behalf of
respondent Nos.1 and 2 i.e. General Manager, Haryana Roadways
Yamunanagar Depot and the State Transport Commissioner/Controller,
Haryana wherein it was averred that as per the statement of the driver of the
offending vehicle, no accident was caused with the offending vehicle.
Rather, the offending vehicle was on its route from Jagadhari to Pammuwala
via Dadhoura on that day and at the time of the alleged accident a
motorcyclist with two pillion riders was driving his motorcycle in a rash and
negligent manner at a high speed and while trying to over take a truck he lost
control over the motorcycle and fell down on the right side of the road itself.
The distance between the offending vehicle and the motorcycle was very
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FAO No.1506 of 2008 3 2024:PHHC:000686
little and the driver of the offending vehicle tried to avoid the accident and
took the offending vehicle to the extreme left hand side of the road towards
the katcha portion for about 5 feet but the rear tyre of the offending vehicle
ran over the motorcyclists. It was further averred that the accident, if any,
took place was due to the negligence of the motorcyclist and the truck driver.
A separate written statement was filed by the driver of the offending vehicle
taking a preliminary objection that the claim petition was not maintainable
and denied the factum of the accident.
3. On the basis of pleadings of the parties, the following issues
were framed by the Tribunal :
1. Whether the accident resulting into the death of Manoj
Kumar son of Dharam Pal took place on 7.7.2006, at
about 5.30 p.m., in the area of village Badsui due to rash
and negligent driving of bus No.HR-58-8847 by
respondent No.1 ? OPP
2. Whether the claimants are entitled to compensation, if so
to what amount and from whom ? OPP
3. Whether the respondent No.3 was not holding the valid
and effective driving licence at the time of alleged
accident ? OPR-4
4. Relief.
4. The Tribunal awarded the following compensation after
assessing the income of the deceased as Rs.3000/- pm :
Sr. Heads Compensation Awarded
No.
1 Monthly income Rs.3,000/-
2 Annual income [3,000 x 12] = Rs.36,000/-
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3 Deduction 1/3rd [36,000-12,000] = Rs.24,000/-
4 Multiplier of 15 [24,000x15] = Rs.3,60,000/-
5 Loss of love and affecting Rs.20,000/-
6 Last rites and transportation Rs.20,000/-
charges
Total Compensation Rs.4,00,000/-
Interest 7.5% per annum
5. Learned counsel appearing on behalf of the Insurance Company
would contend that the Tribunal has applied a deduction of 1/3rd which ought
to have been 50% inasmuch as the deceased was a bachelor and in any case
there is only one claimant in the present case and hence 1/3rd deduction
applied by the Tribunal is erroneous. It has further been contended that it is
an admitted case that it was a case of triple riding on a motorcycle and that
by itself would amount to contributory negligence. In support of his
argument he has relied on a decision of this Court in the case of Zile Singh
alias Dile Singh vs. Krishan Lal & Ors. [2014(39) RCR (Civil) 511].
6. Per contra, learned counsel appearing on behalf of the claimant
has contended that the deceased was a graduate and hence he ought to have
been treated as a skilled worker and the salary of a skilled worker at the
relevant point of time was Rs.3,000/- per month. Learned counsel for the
claimant would further contend that no addition was made towards loss of
future prospects and even the multiplier has wrongly been applied by the
Tribunal as '15' which ought to have been '18' keeping in view the age of
the deceased who was 21 years of age. It has further been contended that no
amount has been awarded towards loss of estate and the amount granted
under the head 'loss of consortium' is also on the lower side. In support of
his contention he has relied upon judgments of the Hon'ble Supreme Court
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in the cases of Sarla Verma & Ors. vs. Delhi Transport Corporation &
Anr. [(2009) 6 SCC 121], National Insurance Company Ltd. vs. Pranay
Sethi & Ors. [(2017) 16 SCC 680], Magma General Insurance Company
Limited vs. Nanu Ram alias Chuhru Ram & Ors. [(2018) 18 SCC 130]
and N. Jayasree & Ors. vs. Cholamandalam M.S General Insurance
Company Ltd. [2021(4) RCR (Civil) 642].
7. I have heard learned counsel for the parties.
8. The argument raised by the learned counsel for the Insurance
Company that since there were two pillion riders on the motorcycle and that
by itself would amount to contributory negligence, deserves to be rejected in
view of the judgment of the Hon'ble Supreme Court in the case of
Mohammed Siddique & Anr. vs. National Insurance Company Limited
& Ors. [Civil Appeal No.79 of 2020 decided on 08.01.2020] which was a
case where the victim was one of the two pillion riders on a motorcycle and
it was held as under :
"13. But the above reason, in our view, is flawed. The
fact that the deceased was riding on a motor cycle along
with the driver and another, may not, by itself, without
anything more, make him guilty of contributory
negligence. At the most it would make him guilty of
being a party to the violation of the law. Section 128 of
the Motor Vehicles Act, 1988, imposes a restriction on
the driver of a two wheeled motor cycle, not to carry
more than one person on the motor cycle. Section 194C
inserted by the Amendment Act 32 of 2019, prescribes a
penalty for violation of safety measures for motor cycle
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drivers and pillion riders. Therefore, the fact that a
person was a pillion rider on a motor cycle along with
the driver and one more person on the pillion, may be a
violation of the law. But such violation by itself, without
anything more, cannot lead to a finding of contributory
negligence, unless it is established that his very act of
riding along with two others, contributed either to the
accident or to the impact of the accident upon the
victim. There must either be a causal connection
between the violation and the accident or a causal
connection between the violation and the impact of the
accident upon the victim. It may so happen at times, that
the accident could have been averted or the injuries
sustained could have been of a lesser degree, if there
had been no violation of the law by the victim. What
could otherwise have resulted in a simple injury, might
have resulted in a grievous injury or even death due to
the violation of the law by the victim. It is in such cases,
where, but for the violation of the law, either the
accident could have been averted or the impact could
have been minimized, that the principle of contributory
negligence could be invoked. It is not the case of the
insurer that the accident itself occurred as a result of
three persons riding on a motor cycle. It is not even the
case of the insurer that the accident would have been
averted, if three persons were not riding on the motor
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cycle. The fact that the motor cycle was hit by the car
from behind, is admitted. Interestingly, the finding
recorded by the Tribunal that the deceased was wearing
a helmet and that the deceased was knocked down after
the car hit the motor cycle from behind, are all not
assailed. Therefore, the finding of the High Court that 2
persons on the pillion of the motor cycle, could have
added to the imbalance, is nothing but presumptuous
and is not based either upon pleading or upon the
evidence on record. Nothing was extracted from PW3 to
the effect that 2 persons on the pillion added to the
imbalance.
14. Therefore, in the absence of any evidence to show
that the wrongful act on the part of the deceased victim
contributed either to the accident or to the nature of the
injuries sustained, the victim could not have been held
guilty of contributory negligence. Hence the reduction of
10% towards contributory negligence, is clearly
unjustified and the same has to be set aside."
9. In the present case there is no evidence on the record to show
that the accident took place due to triple riding. The learned counsel for the
insurance company has not been able to point to any evidence which would
even remotely suggest that the accident was the result of triple riding. That
being so, the argument of the learned counsel for the insurance company
deserves to be rejected.
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10. The deceased in the present case was admittedly a graduate and in
the absence of any income proof he is treated as a skilled worker. The
income of a skilled worker at the relevant point of time was Rs.3,000/- per
month. The claim petition was filed by only one claimant i.e. mother of the
deceased and hence a deduction of 50% ought to have been applied. Further,
no amount has been awarded towards loss of future prospects. The claimant
would be entitled to addition of 40% towards future prospects. The deceased
was 21 years of age and the Tribunal has wrongly applied the multiplier of
'15' which ought to have been '18'. The claimant would also be entitled to
compensation under the conventional heads as well as under the head of loss
of consortium as per the law settled in the cases of Magma General
Insurance Company Limited (supra) and N. Jayasree (supra).
11. In view of the above, the enhanced amount of compensation to
which the claimant-appellants are held entitled to is re-calculated as under :
Sr. Heads Compensation Awarded
No.
1 Monthly income Rs.3,000/-
2 Annual income [3,000 x 12] = Rs.36,000/-
3 50% Deduction [36,000-18,000] = Rs.18,000/-
4 Future prospects @ 40% [18,000 + 7,200] = Rs.25,200/-
5 Multiplier of 18 [25,200x18] = Rs.4,53,600/-
6 Loss of estate Rs.18000/-
7 Funeral expenses Rs.18000/-
8 Loss of Consortium :
(i) Parental Rs.48,000/-
9 Total Compensation Rs.5,37,600/-
12. The amount in excess of and over and above the amount
awarded by the Tribunal shall also attract interest @ 7.5% per annum from
the date of filing of the claim petition till the realization of the entire amount.
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13. In view of the above, the appeal filed by the Insurance
Company is allowed partly whereas the appeal filed by the claimant stands
allowed and the impugned award is modified to the extent stated above.
Pending applications, if any, also stand disposed off.
( ALKA SARIN )
05.01.2024 JUDGE
jk
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
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