Company Limited vs Subhash Arora & Others
2021 Latest Caselaw 436 UK

     THE HIGH COURT OF UTTARAKHAND AT NAINITAL

                   Appeal from Order No. 396 of 2011

Cholamandalam M.S. General Insurance

Company Limited                                               ....... Appellant

                                      Vs.

Subhash Arora & others                                       ......Respondents


Present: Mr. Sarvesh Aggarwal, Advocate for the appellant.
        Mr. Aditya Pratap Singh, Advocate for respondent nos. 1 and 2.
        None presents for respondent nos. 3, 4 and 5.
        Mr. Lalit Miglani, Advocate for respondent no. 6.

                                      Judgment

Hon'ble Ravindra Maithani, J. (Oral)

Instant appeal is preferred against the award dated

28.06.2011 passed in Motor Accident Claim Petition No.156 of 2010

"Subhash Arora and another vs. Pradeep Kumar Garg and others" (for

short "the claim petition"), by which the claim petition preferred by the

claimants under Section 166 of the Motor Vehicles Act, 1988 (for

short "the Act") for compensation arising out of a motor accident has

been allowed by the Motor Accident Claims Tribunal/Additional

District Judge, Roorkee, District Haridwar (for short "the Tribunal")

and respondent nos. 1 and 2 have been awarded a total compensation

of Rs.8,02,000/- (Rupees Eight Lakh Two Thousand only). The

appellant has been directed to make payment of the award within a

period of one month from the date of the award along with interest at

the rate of 6 per cent per annum.

2. The claim petition was filed by the respondent nos. 1 and

2 before the Tribunal on the ground that on 07.09.2010 their son

Umang Arora was coming to Roorkee from his college in a

Vikram/Tempo bearing Registration No. UK-08T.A.-0461 (for short

"the first vehicle"). At about 01:30-02:00 PM near Ibrahimpur turn

G.T. Road, a truck bearing Registration No. U.K.-08-C.A-1594 (for

short "the offending vehicle") came from opposite direction, which

was being driven in a rash and negligent manner by its driver, hit the

first vehicle in which Umang Arora was travelling, due to which, the

first vehicle was damaged. Umang Arora sustained serious injuries.

The driver of the first vehicle died at the spot and other passengers

were also injured. Umang Arora was taken to the hospital, but he

succumbed to the injuries.

3. It is the case of respondent nos. 1 and 2 that Umang Arora

was a very brilliant student and was studying second year MBA

Programme in the Institute of Management Studies, Roorkee. Family

has many expectations from him.

4. Objections to the claim petition were filed. The Tribunal

framed the following issues for consideration:-

"1. Whether the accident dated 07.09.2010 at about 01:30

- 02:00 P.M. at village Ibrahimpur band, G.T. Road, under P.S.

Kotwali Gangnahar, Roorkee, District Haridwar, occured when

the son of the claimants Umang Arora (deceased) was coming to

Roorke from his college in Tempo/Vikram bearing registration

No. UK-08T.A.-0461 and when it reached at Ibrahimpur turn,

then a truck bearing registration no. U.K.-08-C.A-1594, which

was being driven rashly and negligently on the wrong side by

opposite party no. 2 Praveen Kumar hit the tempo, as a result of

which, Umang Arora sustained injuries and died?

2. Whether the accident occurred due to the overloading

and rash and negligent driving by the driver of Tempo (Vikram)

bearing registration no. UK-08T.A.-0461, as stated by opposite

party nos. 1 and 3 in their written statement?

3. Whether the claimants are entitled for any

compensation? If yes, then from whom and to what extent?

4. Whether the accident occurred due to contributory

negligence of the driver of truck no. UK-08CA-1594 and

Tempo/Vikram No. UK-08 TA-0461, as stated by opposite party

no. 3 in para no. 20 of its written statement? If yes, then its

effect?

5. Whether at the time of accident, the driver of Truck

No. UK-08CA-1594 was not having a valid driving licence and

the documents relating to the vehicle were not valid, as has been

stated by opposite party no. 3 in its written statement?

6. Whether at the time of accident, the driver of

Tempo/Vikram No. UK-08TA-0461 was not having a valid

driving licence, as has been stated by opposite party no. 5 in its

written statement?"

5. The Tribunal held that the accident was caused by the

negligent and rash driving of the offending vehicle, as a result of

which, Umang Arora sustained injuries and thereafter died. The

Tribunal also concluded that the accident did not occur due to the

overloading and rash and negligent driving of the driver of the first

vehicle. Issue nos. 1 and 2 were decided accordingly.

6. The Tribunal recorded a categorical finding that the

accident occurred as the offending vehicle was being driven on the

wrong side and it dashed the first vehicle which was on its right side.

The accident did not occur due to contributory negligence of the driver

of the first vehicle. The issue no. 4 was decided accordingly.

7. On issue no. 5, the Tribunal on the basis of the documents

placed before it came to the conclusion that at the time of the accident,

the driver of the offending vehicle was having a valid driving licence

and all the papers relating to the offending vehicle were valid. The

Tribunal also held that the driver of the first vehicle was having a valid

driving licence and all the papers relating to the first vehicle were

valid. Issue no. 6 was disposed of accordingly.

8. Having decided all the other issues, the Tribunal came to

the conclusion that the claimants are entitled for compensation of

Rs.8,02,000/- from the appellant. Aggrieved by it, the appellant is in

appeal.

9. Notices were issued to the respondents. Respondent nos. 1

and 2 are being represented before this Court by Mr. Aditya Pratap

Singh, Advocate and respondent no. 6 is being represented before this

Court by Mr. Lalit Miglani, Advocate. Office report shows that

respondent no. 3 has been served through his son, respondent no. 4 has

been served through his wife and respondent no. 5 has been served

personally. Service is sufficient on the respondent nos. 3, 4 and 5, but

there is no representation on their behalf.

10. Learned counsel for the appellant would submit that the

appellant had earlier filed an appeal against award given in a claim

petition, which arose from the same accident and that AO No. 339 of

2011 (for short "First AO") has been dismissed. In First AO the

question of contributory negligence was not taken but this Court, in

First AO did not differ with the finding recorded by the Tribunal on

the issue of contributory negligence. It is argued that the Tribunal

committed an error in law while holding the monthly income of the

deceased Umang Arora as Rs.12,000/- (Rupees Twelve Thousand

only) per month. It is argued that this assessment is without any basis.

11. In support of his contention, the learned counsel for the

appellant has placed reliance on the principles of law as laid down in

the case of M.R. Krishna Murthi vs. New India Assurance Co. Ltd. &

others, 2019 (2) Apex Court Judgments 234 (S.C.). Specific reference

has been made to paragraph no. 23 of the said judgment, which is as

hereunder:-

"23. From the conjoint reading of the aforesaid judgments, inter alia, following principles can be culled out which would be relevant for deciding the instant appeal:

(i) In those cases where the victim of the accident is not an earning person but a student, while assessing the compensation for loss of future earning, the focus of the examination would be the career prospect and the likely earning of such a person in future. For example, where the claimant is pursuing a particular professional course, the poseer would be: what would have been his income had he joined a service commensurating with the said course. That can be the future earning.

(ii) There may be cases where the victim is not, at that stage, doing any such course to get a particular job. He or she may be studying in a school. In such a case, future career would depend upon multiple factors like the family background, choice/interest of the complainant to pursue a particular career, facilities available to him/her for adopting such a career, the favourable surrounding circumstances to see which would have enabled the claimant to successfully pick up the said career etc.

If the chosen field is employment, then the future earning can be taken on the basis of salary and allowances which are payable for such calling. In case, career is a particular profession, the future earning would depend on host of other factors on the basis of which chances to achieve success in such a profession can be ascertained.

(iii) There may be cases like Deo Patodi where even a student, the claimant would have made earnings on part-time basis or would have received offer for a particular job. In such cases, these factors would also assume relevance.

(iv) After ascertaining the likely earning of the victim in the aforesaid manner, the nature of injuries and disability suffered as a result thereof would be kept in mind while determining as to how much earning has been affected thereby. Here, impact of injuries on functional disability is to be seen. In case of death of victim, it would result in total loss of earning. In the case of injuries, the nature of disability becomes important. Such an exercise was undertaken in N. Manjegowda case."

12. On the other hand, learned counsel for respondent nos. 1

and 2 would submit that no interference as such is warranted in the

instant appeal. It is argued that the deceased was a student of Master of

Business Administration of second year from a reputed Institute; he

was a bright student and after completion of his studies, he would have

secured a job at a very high monthly salary. It is argued that in fact

there is no appeal for enhancement of the award otherwise, the award

would have been enhanced. Learned counsel for respondent nos. 1 and

2 makes reference to the statement of PW-3 Pankaj Joshi, who was

examined before the Tribunal and stated about the fact that the

deceased was studying in MBA second year in the Institute of

Management Studies at Roorkee.

13. Making reference to the judgment in the case of M.R.

Krishna Murthi (supra), learned counsel for respondent nos. 1 and 2

would submit that in cases of students, an optimistic assessment of

income is made, based on various factors, and it has been done in this

case. Learned counsel for respondent nos. 1 and 2 referred to the

observations of the Tribunal recorded at page 13 and page 14, to argue

that, in fact, the assessment is based on the fact that the deceased was a

student of MBA second year, and had he survived, he would have

secured a good job.

14. This Court will first deal with the issue of contributory

negligence. It is admitted that arising out of the same motor accident,

another claim petition was filed by some other claimants, which was

decided by the Tribunal on 25.03.2011. Against it, the appellant

preferred First AO. In that First AO in paragraph 11 of the judgment,

the Court recorded the ground for challenge which is as hereunder:-

"11. Aggrieved, the insurance company has filed the present appeal challenging the award passed by the learned Tribunal, firstly on ground that the income tax returns of the deceased were not proved by the department and secondly, the deceased

was a bachelor at the time of the incident and therefore instead of one-third, one-half of the amount was liable to be deducted towards personal expenses."

15. The First AO was dismissed by the Court on 02.08.2019.

As such, the question of contributory negligence was not raised in the

First AO. In the claim petition, issue no. 4 was with regard to

contributory negligence. In fact, the appellant in his written statement

filed in the claim petition recorded at paragraph no. 21 that the

accident is solely contributed/attributed to the driver of the first

vehicle. The Tribunal assessed evidence on this point. On issue no. 4,

the Tribunal has categorically considered the technical inspection

reports of both the vehicles involved in the accident, and also taken

note of the site map, which revealed that it is the offending vehicle

which moved on the wrong side and hit the first vehicle. It is a case of

res ipsa loquitur also. Apart from it, PW-2 Waseem has stated as to

how the accident took place and he has categorically stated that it is

the offending vehicle which came extreme wrong side and hit the first

vehicle. Therefore, the finding on issue no. 4 that it is the offending

vehicle which hit the first vehicle by moving on the wrong side cannot

be said to be not based on fact. The finding on issue no. 4 does not

require any interference.

16. The next question is with regard to monthly income of the

deceased Umang Arora. In the case of M.R. Krishna Murthi (supra),

the Hon'ble Supreme Court has taken note of various judgments,

which dealt with the income of a student while assessing

compensation. The cases referred by the Hon'ble Supreme Court in

M.R. Krishna Murthi (supra) are: Arvind Kumar Mishra vs. New India

Assurance Co. Ltd., 2010 (3) Apex Court Judgments 484 (S.C.) :

(2010) 10 SCC 254, Oriental Insurance Company Limited vs. Deo

Patodi & Ors., 2010 (1) Apex Court Judgments 219 (S.C.) : (2009) 13

SCC 123, New India Assurance Co. Ltd. vs. Ganga Devi & Ors.

(judgment of High Court of Delhi) passed in MAC. APP. No.135 of

2008, and many other judgments.

17. In the case of Arvind Kumar Mishra (supra), the deceased

was a student of final year of engineering and his future earning was

assessed at Rs.60,000/- per annum. In the case of Deo Patodi (supra),

the deceased was a brilliant student who had declined some good job

offer at a salary of Rs.18 lakhs per annum. His future earning was

assessed at Rs.18,000/- per month. In the case of Ganga Devi (supra),

the deceased had completed his MBBS and was doing internship and

his future earning was assessed at Rs.18,000/- per month.

18. In cases where there is no record of the income of the

deceased, it is always a matter which is decided on the basis of

attending circumstances, qualifications, occupation, future prospects

and many other related factors. There is no straightjacket formula

which may apply to assess the future earning in such cases. It is

somehow a guess work also but the judicial approach which is

maintained is to reach to the optimum level of correct appreciation of

future earning.

19. In the instant case, the Tribunal noted and considered the

evidence about the study and the qualification of the deceased Umang

Arora. The Tribunal noted that he was a second year MBA student in

IMS, Roorkee and also the fact that if he would have survived, he

would have secured a good job. It is thereafter the case laws were

referred by the Tribunal and concluded that the monthly income of the

deceased would be Rs.12,000/-.

20. This Court does not see any reason to disturb this finding.

This finding cannot be termed as not based on any evidence. This

finding has been recorded by the Tribunal on the basis of available

evidence. Accordingly this Court is of the view that the instant appeal

deserves to be dismissed.

21. The appeal is dismissed.

(Ravindra Maithani, J.) 24.02.2021 AR/