Punjab-Haryana High Court
Bangarpet Gundappa And Anr vs Vimlesh Kumar And Ors on 7 May, 2024
Author: Archana Puri
Bench: Archana Puri
Neutral Citation No:=2024:PHHC:063940
2024:PHHC:063940
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO-2537-2015 (O&M)
Date of Decision: May 07, 2024
Bangarpet Gundappa and another
...Appellants
VERSUS
Vimlesh Kumar and others
...Respondents
CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI
Present: Mr.Surinder Kumar Daaria, Advocate
for the appellants.
Mr.Rajbir Singh, Advocate
for respondent No.3-insurance company.
****
ARCHANA PURI, J.
Challenge in the present appeal is to the Award dated
19.12.2014 passed by learned Motor Accident Claims Tribunal, whereby,
compensation was granted to the appellants-claimants, on account of death
of Rashmi Gundappa, in a motor vehicular accident, which took place on
30.07.2011.
On appraisal of the evidence, adduced on record, learned
Tribunal had held there to be contributory negligence, on the part of
deceased Rashmi Gundappa, in causing the accident in question and
considering the same, had granted compensation to the extent of
Rs.54,82,400/- (50% of the total compensation) together with interest
component. The liability of the respondents was held to be joint and several.
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Feeling aggrieved of the findings recorded by learned Tribunal
qua contributory negligence, attributed to the deceased to the extent of 50%
and also consequential compensation granted, the appellants-claimants have
filed the present appeal.
The essential facts, to be noticed, are as follows:-
That, on 30.07.2011, Deepak Virmani, came to meet his aunt at
Gurgaon. When, he was returning back to his house at Faridabad at about
12.15 a.m., a Hyundai I-10 car, being driven by Rashmi Gundappa (since
deceased) was going ahead of his car. When they reached just ahead of
Kanhai Red Light, in the meantime, the I-10 car, driven by said Rashmi,
collided with a dumper bearing registration No.HR-55E-0614, which was
wrongly parked on the road, by its driver, in a negligent and careless
manner, without following any traffic rules and without any parking or tail
lights. Due to the impact of the collision, the offending vehicle moved back
slightly and as a result of the same, the car of deceased was extensively
damaged. Deepak Virmani, with the help of some persons, had taken the
injured to Paras Hospital, Gurgaon. He had also noted the registration
number of the offending vehicle as HR-55E-0614. It is the categoric claim
that the accident had taken place, due to the wrong parking of the offending
vehicle, on the road by its driver i.e. respondent No.1-Vimlesh Kumar. FIR
was got registered qua the accident in question. The claim petition was filed
by parents of the deceased.
In reply, respondents No.1 and 2 i.e. driver and owner of the
offending vehicle, besides taking preliminary objections with regard to locus
standi, cause of action, they also denied the accident having caused, due to
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rash and negligent driving of respondent No.1 and they made a prayer for
dismissal of the claim petition. Likewise, respondent No.3-insurance
company, in the written statement, besides taking preliminary objections,
had also denied the factum of accident and also made a prayer for dismissal
of the claim petition.
To so substantiate the factum of accident, the claimants
examined PW-4 Deepak Virmani, whose affidavit is Ex.PW4/A. He deposed
in consonance with the pleaded case of the appellants-claimants and further
also deposed about registration of FIR, at his instance. Further, father of the
deceased namely Bangarpet Gundappa stepped into witness box as PW-5
and besides the same, various other witnesses have also been examined.
On the contrary, no oral evidence, as such, was led by the
respondents. However, the insurance company, after tendering the insurance
policy Ex.R2, closed evidence, on behalf of respondent No.3.
Considering the evidence, brought on record, in the backdrop of
various rules, with regard to parking of the vehicle and the precautions to be
taken, while parking such like vehicle and also taking into consideration,
about the reasonable care, having not taken, at the behest of the deceased,
learned Tribunal reached the conclusion that the accident had taken place, on
account of contributory negligence of the deceased and respondent No.1-
Vimlesh Kumar, in the ratio of 50:50.
In view of the documentary evidence, coming on record, with
regard to the profession of doctor, followed by the deceased and her being
employed in Global Health Private Ltd., learned Tribunal had concluded
about salary of the deceased to be Rs.84,950/-, which worked out to be
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Rs.10,19,400/- per annum and considering the same, after taking into
consideration, about the deduction of Rs.17,736/-, made towards income tax,
as deposed by PW-3 Sunil Kumar Maini, Senior Manager of Global Health
Private Limited, in the cross-examination and thereafter, deducting an
amount of 20.87% out of the salary of the deceased, the tax was worked
upon as Rs.3,19,123/- and after making this deduction, the earnings of the
deceased, with addition of 50% of the salary, was worked upon as
Rs.12,09,976.93 per annum. After making deduction to the extent of 50%,
on account of personal expenses, deceased being unmarried, the annual
dependency of the claimants was taken as Rs.6,04,988.4 and while applying
the multiplier of '18', the compensation was worked upon as
Rs.1,08,89,791.2. Besides the aforesaid amount, a sum of Rs.25,000/- was
awarded towards funeral expenses and another sum of Rs.50,000/-, on
account of loss of love and affection. In total, the compensation was worked
upon as Rs.1,09,64,791.2. From the said amount, while making deduction to
the extent of 50%, on account of contributory negligence, on the part of the
deceased, the appellants-claimants were held entitled to the amount of
Rs.54,82,395.6, which was rounded off to Rs.54,82,400/-.
Such being the appraisal of evidence, brought on record, at the
very outset, learned counsel for the appellants has assiduously resisted the
finding of contributory negligence, on the part of the deceased. It is
submitted that the accident had taken place, at midnight, at 12.15 a.m. The
dumper was parked in the middle of the road on a highway and without
taking any precautions, with regard to parking of the vehicle and therefore,
considering the same, it is submitted that in any case, the accident
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cannot be concluded to be a case of contributory negligence, on the part of
the deceased also. Thus, it is submitted that blameworthiness has been
erroneously fastened upon the deceased to the ratio of 50:50.
Undoubtedly, from the material evidence, coming forth, it
stands established that deceased Rashmi was driving the I-10 car, at the
relevant time of accident. Also, it stands established that the said car struck
against the stationery dumper from the backside. Suffice to consider the
testimony of Deepak Virmani, an eye witness to the accident, who had got
recorded the FIR and had also taken the injured, soon after the accident, to
the hospital. During the course of arguments, much emphasis has been laid
upon the fact of I-10 having struck the dumper from the backside. May it be
so, but simultaneously, it is essential to take note of the fact that it is a
specific case of the appellants-claimants, about the dumper to be stationed in
the middle of the road and that too, without any sign board or indicators of
the vehicle to be 'on', while parking the dumper, on the road.
In this regard, it is important to make reference to the reply filed
to the claim petition, at the instance of respondents No.1 and 2. Therein,
nothing as such, is coming on record, about any precautions, as per rules,
having taken by respondent No.1, while parking the vehicle on the road.
This was clearly in contravention of the Rule 109 and 138 of the Central
Motor Vehicle Rules, which has been reproduced by learned Tribunal, in the
impugned Award.
It is also pertinent to mention that as per Rule 15 of the Road
Regulations, 1989, every driver of a motor vehicle, parking on any road, is
required to park the vehicle, in such a way that it does not cause or is not
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likely to cause danger, obstruction or undue inconvenience to the other road
users and if the manner of parking is indicated by any sign board or making
marking on the road side, he shall park his vehicle in such manner.
Besides these precautions having not been so taken, as required by the
ibid rules, it is also pertinent to mention that accident had taken place on
highway, when proceeding from Gurgaon to Faridabad and that too, at
midnight. There is no such evidence, coming forth, about due precautions
having been taken by respondent No.1, while parking the dumper and
putting all the safety measures, at the time of parking of the vehicle and
having put 'on' the parking lights. In the given circumstances, there is
definitely, contravention of the Central Motor Vehicle Rules.
To counter this plea of negligence, on the part of respondent
No.1, while parking the dumper, respondent No.1 was the best person, who
could have explained, as to whether, any such steps had been taken, but
however, he had chosen to remain away from the witness box. Not even
such plea of precautions having taken, was raised, in the reply.
To establish the contributory negligence, some act or omission,
which materially contributed to the accident or the damage, should be
attributed to the person, against whom, it is alleged. Where, by his
negligence, one party placed another in a situation of danger, which compels
the other to act quickly, in order to extricate himself, it does not amount to
contributory negligence, if that other acts, in a way, with which the benefit
of hindsight is shown not to have been the best way out of the difficulty. In
fact, the mere failure to avoid the collision by taking some extraordinary
precaution, does not in itself constitute negligence.
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In the case in hand, it is pertinent to mention that accident had
taken place in the midnight. There is not an iota of evidence, coming on
record, to establish about that area, where the accident had taken place, to be
well lit. The accident had taken place on a highway. The speed of the ill-
fated car, is also bound to be more, comparatively, being a vehicle driven on
highway. Even, highway is not a place for a dumper to be parked and that
too, without parking lights etc. In the given circumstances, one cannot
decipher that the deceased, being occupant, while driving the car, could
eventuate the situation, to come across the vehicle(dumper), which was
stationary. Such being the situation, obviously, she could have, at the
maximum, noticed the vehicle, only having come very near to it. Within a
fraction of few seconds, she may not have been able to quickly respond to
the fact of dumper, being parked there. This error to respond spontaneously,
in any manner, cannot amount to contributory negligence, more particularly,
when there was failure on the part of driver of the dumper, who had parked
the vehicle, in such a manner, without taking precautions and thus, putting
the deceased, in situation of danger. Considering all the aforesaid factors, in
any manner, it cannot be concluded that there was contributory negligence,
on the part of the deceased, while driving the ill-fated car.
In the given circumstances, the findings recorded by learned Tribunal,
with regard to there being contributory negligence, on the part of the
deceased, to the ratio of 50%, is hereby set aside.
In this backdrop, let us consider the compensation, to be granted
to the appellants-claimants. As already reproduced in the earlier portion of
the judgment, the compensation, so worked upon by learned Tribunal, do
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call for re-determination.
Apart from father of the deceased, deposing about the
profession followed by his daughter, Sunil Kumar Maini, Senior Manager of
Global Health Private Limited, has been examined as PW-3, who, on the
basis of the record, has deposed about Dr.Rashmi Gundappa to be working
in their hospital. He proved the appointment letter Ex.P5 and also proved
the last drawn salary certificate, which is Ex.P3. As per the same, the salary
of the deceased as Rs.84,950/- per month, the break-up whereof, has been
reproduced by the Tribunal, in paragraph No.15 of the impugned Award.
Considering it to be so, the annual income worked out to be Rs.10,19,400/-.
For the purposes of assessment of the compensation, as per
Pranay Sethi's case, it is the income minus tax component, which ought to
be taken into consideration. Learned Tribunal, in the impugned Award had
made an observation, on the basis of cross-examination of PW-3 Sunil
Kumar Maini, Senior Manager, wherein, he admitted that deduction of
Rs.17,736/- was made towards income tax and on the same basis, the
deduction to the extent of 20.87% of the salary of the deceased, was made
towards tax and the total tax was Rs.3,19,123/- and after making deduction
of the same, the income was worked upon as Rs.12,09,976.83. However,
this manner of deduction of the tax, is not appropriate.
Though, PW-3 Sunil Kumar Maini, in the cross-examination
had stated that deduction to the extent of Rs.17,736/- was made towards
income tax, but there is no material, coming forth, with regard to this extent
of deduction made from the earnings of the deceased. In the given
National Insurance Company Limited vs. Pranay Sethi and others, 2017(4) RCR (Civil) 1009
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circumstances, it shall be appropriate to consider the income tax slab, as
prevalent, at the relevant time.
As per the tax slab, prevalent at the time of accident, the income upto
Rs.1,80,000/- was tax free. From the income bracket of Rs.1,80,000-
5,00,000/-, income tax payable was 10%, which is to the extent of
Rs.32,000/-. Furthermore, for the income bracket of Rs.5,00,000-8,00,000,
the tax payable was 20% i.e. Rs.60,000/-. The income bracket from
Rs.8,00,000/- and above, the tax payable was 30%. Since, the total income
of the deceased, as worked upon aforesaid, was Rs.10,19,400/-, therefore,
the after deduction upto Rs.8,00,000/-, the residue taxable amount works out
to be Rs.2,19,400/- and upon the same, tax payable @ 30%, comes to be
Rs.65,820/-. Thus, the total tax payable, comes to be Rs.1,57,820/-. After
making deduction of this tax amount, the residue income, to work upon the
dependency, comes out to be Rs.10,19,400-1,57,820=Rs.8,61,580/-.
Even though, learned Tribunal had considered the addition on the
count of 'future prospects' to be 50%, but however, as per Pranay Sethi's
case, considering the age of the deceased to be 29 years, while taking date of
birth of Rashmi Gundappa as 10.12.1981, as evident from various
educational certificates, coming forth and considering the employment
document of the deceased, the addition, ought to be made, to the extent of
40%, which is to the extent of Rs.3,44,632/-. Thus, the total income of the
deceased works out to be Rs.861580+344632=Rs.12,06,212/- per annum.
Undisputedly, the deceased was unmarried. Considering the
same the deduction, as per Sarla Verma's case, the deduction on the count
Smt.Sarla Verma vs. Delhi Transport Corporation and anr., 2009(3) RCR (Civil) 77
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of 'personal expenses', ought to be 50%. Thus, making this deduction, the
loss of dependency comes to be Rs.12,06,212-603106=Rs.6,03,106/-.
Considering the age of the deceased, as per Sarla Verma's case,
the appropriate and suitable multiplier, to be applied is '17', and after
application of the same, the loss of dependency, works out to be
Rs.603106x17=Rs.1,02,52,802/-.
Besides the aforesaid, compensation under the conventional
heads, ought to be paid to the appellants-claimants. Learned Tribunal, while
working upon the compensation had granted Rs.25,000/-, on the count of
'funeral expenses' and Rs.50,000/- was awarded, towards 'loss of love and
affection'. However, as per prevalent law, these amounts, call for
intervention by this Court. As per Pranay Sethi's case (supra), under the
conventional heads, on the count of 'loss of consortium', 'loss of estate' and
'funeral expenses', compensation was required to be paid, to the extent of
Rs.40,000/-, Rs.15,000/- and Rs.15,000/- respectively. However, with the
enhancement clause of 10%, after every three years of the passing of the
judgment, so calculating, at present, the compensation, on the aforesaid
counts, comes out to be, Rs.48,400/-, Rs.18,150/- and Rs.18,150/-,
respectively.
However, as per 'Magma General Insurance Company
Limited vs. Nanu Ram @ Chuhru Ram and others, 2018 (18) SCC 130',
now, 'loss of consortium' is not only restricted to the spouse. Rather, it was
held that all the dependents/claimants, as the situation may required, are
entitled to 'parental', 'spousal' and 'filial consortium. Considering the same
Smt.Sarla Verma vs. Delhi Transport Corporation and anr., 2009(3) RCR (Civil) 77
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both the appellants-claimants, who are parents of the deceased, are entitled
to an amount of Rs.48,400/- each, for the 'loss of consortium'.
Considering the same, the compensation payable to appellants-
claimants, on account of death of Rashmi Gundappa, is re-computed, as
herein given:-
Loss of dependency : Rs.1,02,52,802/-
Loss of consortium : Rs.96,800/-
Loss of estate : Rs.18,150/-
Funeral expenses : Rs.18,150/-
Total : Rs.1,03,85,902/-
As such, the enhanced compensation, after the deduction of
compensation awarded by the Tribunal comes to be Rs.1,03,85,902-
54,82,400=Rs.49,03,502/-. On the enhanced amount of the compensation i.e.
Rs.49,03,502/-, the appellants-claimants shall be entitled to the interest, at
the rate of 6% per annum, from the date of filing of the present appeal, till
realization of the enhanced amount of compensation. The liability to pay the
compensation shall be joint and several of the respondents.
In view of the aforesaid terms, the present appeal stands
allowed.
May 07, 2024 (ARCHANA PURI)
Vgulati JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes/No
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