Neena Somani & Ors v. United India Insurance Co Ltd

JUDGMENT ; REV A KHETIU.PAL, J.

¶1By this commonorder, it is proposed to decide both the albresaid appeals assailing the judgment of the learned Motor Accidents Claims Tribunal in Suit.No.490/04,whereby the learned Tribunal passed an award in the sum of? 84,29,000/-.alongwith interestat the rate of 7% per annum from the date ol the lilingol the petition. The appellant in the first appeal is, M/s. United India InsuranceCo. Ltd., whichhas prayedfor settingaside/modificationof the impugnedaward,on a numberofgrounds,whereas the appellants in the secondappeal, are the claimants,who seek enhancementofthe award amount on the ground that the quantum of compensation awarded to them has not been calculated in accordance with the well settled principles of law.

¶2The concise facts leadingto the filing of the present appeal are that a Claim Petition was filed by the parents oi' one Rahul Somani under Section 166 of the Motor Vehicles Act, 1988, claiming compensationon account-of his death in a road accidcntwhich took MAC.APP. 331/2008 ami MACAPP • - Paf^e2 of 17 place in the night intervening16"Vl7" August, 1997. On the latelul night, the car of the deceased, being a Maruti car bearing.NoJ)L-3CA-9612, comingfrom the side.ofNew Friends Colony, sniashed against tht back portion ofa stationarytruck bearingNo.ElRS-2102 which was parked' in the middle of the road on Modi Flyover, resultingin fatal injurieson the personofRahul Somani,who expired on the spot.

¶3I'he insured, that is, the owner of the ofl,endingtruck, did not •contest the case despiteserviceofnoticeupon^himand was proceeded ex purls. Av^'rittenstatementwas, however, filed by the insuiei,(the appellant herein), denying the contents of the Claim Petition and claimingthat the truck had gone out oforderdue to mechanicaliault, and was parked on the side ofthe road with its rear red light on and stones and bricks placed around the stationary vehicle to give adequateindicationto the oncomingvehicles. It was furtherstated in the written statement that the deceased was either under the inlluenee of liquor or do/ing while drivinghis car and had dashed against the rear portion of the parked vehicle insuredwith the appellant. It was MAr APP. amlMAC.APP Pai^e3ofl7 A also pleadedthat the aceidenthad not taken place due to the rash and negligentdrivingofthe truck insuredwith the appellant,and that the police had been misled into registeringthe First InformationReport bearingNo.872/1997,which was subsequentlycancelledand thus no charge-sheetwas filed againstthe driverofthe truck. .4. The learnedTribunal,afterscrutinizingthe evidenceon record, directedthe appellant-InsuranceCompanyto pay the awardedamount on the ground that on the date of the accident the vehicle involved was fully covered under a valid insurancepolicy, f:x.R2W2/l in the name of the respondentNo.3-insured. fhe learned Tribunal llirther held that cancellation of the FIR pertaining to the accident did not absolve'the InsuranceCompanyof its"liabilityto pay compensationto the third,party involved in the accident.

¶5In the course of hearing before this Court, Mr. I..K. 'i'yagi, the learned counsel for the appellanthas vociferouslycontendedthat the learned Tribunal erred in listening the liability of the award amount on the Insurance Company and in not appreciating the fact that the accident had occurred due to the sole negligence of the deceased. Mr. MAC. APP. 331/2008 and MACAPP P(igeJj>£2Z Tyagi relied upon the judgmentof the Supreme Court in the case of Raj Rani and Ors. Vs. Oriental Insurance Co. Ltd. and Ors. 2009 ACJ 2003 to contend that the truck being stationary, some amount of negligence on the part of the deceased could not be ruled out. Accordingto him, the learnedTribunalought to have apportioned'the liabilityand fixed the contributorynegligenceof the'deceased to the extent of 50% keepingin view the ratio of the judgment in Raj Rani's case (supra), lie llirthercontendedthatthere being no eye witnessto the accident and no charge-sheet having been filed against the driver of the truck, the negligenceon the part.of the truck insured with the appellanthad not been proved on record. In such circumstances,he contended that the learned Tribunal erred in holding that the doctrine oJ mv ipsa loquilor would be applicableto the lacts ol the case and in drawingadverse inferenceagainstthe driverof the olTendingtruck on the ground that he did not appearin the witness box. Mr. 'lyagi also submitted that the driver of the truck not having been made a party to the petition,the question of his appearingas a witness did not arise MAG APP. 331/2008 umlMAC.APP Page 5 of17 Y and consequently, no adverse inference couid have been drawn against him.

¶6As regards the quantum of compensationawarded to the. legal representativesofthe deceased,Mr. Tyagi submittedthat the learned Tribunalerred-in consideringthe incomeof the deceasedon the basis of his,income-taxreturn filed for the assessmentyear 1997-98and in not takinginto considerationthe fact that the businesscontinuedeven after the death of the deeeased and was being run by the father of the deceased. It was also contended by him, relying upon the judgment of the SupremeCourt in the case o[Smt. Sarlct Verma and Ors. vs. Delhi TransportCorporationand Am. (2009) 6 SCC 12L that in view of the fact that the deceased was unmarried, the learned 'fribunal erred in deducting one-third (1/3''') from his income towards his personal expenses and that the deductionshould have been not less • than one-half(1/2) of the income of the deceased. Relying upon the . judgmentof the SupremeCourt in the case of New India Assurance Co. Ltd. vs. Smt. Shanti Pathak and Ors., I (2008) ACC 45, he further contended that the age of the father of the deceased being 52 MAC. APP. 331/2008 ami MACAPP Pu^e6ofl7 [p A years, the appropriatemultipliereould not have been more than 8 years and the Tribunalerred in applyingthe multiplierof 11 years to ascertainthe total loss of dependencyof the appellants.

¶7Needless to state, all the aforesaidcontentionsof the learned counsel for the appellant-InsuranceCompany were strongly rcluted by Mr^ Satyavan Kudalwal, the learned counsel for the^ claimants/respondentsNo.l and 2, who soughtto supportthe findings of the learned 'I'ribunalon all counts, except to urge that considering the age of the deceased,the amount of the award should have been more, keeping in view-thefact that had the deceasednot met with the unfortunateaccident his" income would have most certainly increased with the passage of time.

¶8Adverting first to the issue of contributory negligence, the undisputedfacts are that the claimantshave proved on recordcopy oL the FIR as f-x.PWI/l and the appellanthas also proved on record the copy ol' the f'lR as i-:x.R2Wl/2,which shows that both the parties have relied upon the First Information Report. 'I'he factum ol' the accident is thus not in dispute as also the manner in which the same MAC. APP. uimnm (uuimacapp Pa'^aJofn look placc. However, Mr. Tyagi^s xonlcntion regarding the contributorynegligenceofthe deceaseddoes not Inid lavourwith me for the reason that the questionas regards contributorynegligenceis essentiallya questionoffact, and the fects in the instantcase do not inculpatethe deceased, hi the instant case, the accidentoccurred in the dead of the night, that is. at 12.30 A.M., on a flyover, being the Modi Flyover. The site plan lix.PWl/2,which was prepared by the police in the course of investigationof case MR No.872/97 shows that,the place ofthe accident is in the middle of the road. It further shows that the stationarytruck was lying parked in the middle ol the road abandoned by its driver in a dangerous condition, 'fhere is no evidenceproducedby the respondentNo.3 owner to prove that the driver or any other person was left on the driver'sseat who had the licence to drive the vehicle. There is also no evidence adduced by the respondentNo.3 to prove that any indicator,indicatingthafthetruck was stationary or non-operational,was there on the abandoned vehicle. As regards the contentionof the counsel for the appellant that the deceased was either under the influence of alcohol or was, mac:, a pp. 331/2008and MACAPP Pr/yg8 of 17 do/.ine,, this conLcntion is without merit as there is on leeoid the toxieologieai analysis report of the body ol the deeeasqd as I'X.PWl/S, whieh proves that the deeeased was not under the inllueneeofany drug or aleoholat the time ofthe aeeident.

¶9I'he plea ofthe appellantthat the truek was out oforder due to some meehanieal defect is .also unsubstantiated on record. No mechanical inspection of the truck was conducted even though its number was readily availablc-withthe police after the registrationof the I'IR. Strangely,the appellant-InsuranceCompany has taken the plea that the rear red light ol the truck was on and stones and biicks had been placed around the non-functionalvehicle,but not an iota ol evidencein this regard has been broughton record. Neitherthe driver ol' the alleged truck who had left the vehicle in such a manner has been examined nor the owner of the truck has been produced in the witness box. In such circumstances,in my view, the learned'I'ribunal rightly concludedthat the truck driver was guilty of violationofthe express provisions of Sections 122, 126 and 127 ol the Motor Vehicles Act, 1988 by leaving the offending truck unattended, MAC APP U1/2IWHandMAC.APP ^ vvilhoLildue and propereaution,in the middleofthe road, and that too on a ilyover. For the sake ofconvenience,Sections122, 126 and 127 are reproduced hercunder: ' Section

¶122Leaving vehicle in dangerous •position - No person in charge, of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a positionor in such a condition or in such circumstances as to cause or likely to cause danger, obstructionor undue inconvenience to other users of the public place , or to the passengers. "Section 126. Stationary vehicles.- No person driving or' in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there is in the driver's seat a person duly licensedto drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the abscncc of the driver. , • "Section

¶127Removal of motor vehicles abandoned or left unattended on a public place.- (1) Where any motor vehicle is , abandoned or left unattended on a public place for ten hours or more or is parked in a place where parkingis legallyprohibited,its removal by a lowing service or its immobilisationby any means including wheel'clamping may be MAC. App. 331/2008 andMAC.APP 10 of 17 ,0 \ authorisedby a police officerin uniformhaving Jurisdiction.. . (2) Where an'abandoned,unattended,wrecked. • burnt or partiallydismantledvehicle is creating a traffic-hazard, because of its position in relation to the public place, or its physical appearance is causing the impediment to the traffic, its immediate removal from the public place by a towingservicemay be authorisedby , a policeofficerhavingjurisdiction.

(3) Wherea vehicleis authorisedto be removed under sub-section (1) or sub-section (2) by a police officer,the owner of the vehicleshall be responsible for all towing costs, besides any •other penalty!" . :

¶10lairther, on the aspect of negligence of the driver of the offendingtruck, the learned Tribunal has, in my view, rightly held that the standardof proofis altogetherdifferenLin criminalcases and in civil cases, 'fhe proceedingsbefore the Motor Accidents.Claims Iribunal are of a civil nature and it is settled law that in civil cases it is the preponderanceofprobabilityand not the rule ofproofbeyond any reasonabledoubt which holds-thefield. Adverse inferencewas also rightly drawn by the learnedTribunalagainst.thedriver.who did not appear in the witness box to explain the manner in which the accident occurred. MAC. App. U]/2(WHamiMAC.APP !I of 17 -w

¶11, As regardsthe non-impleadmenlofthe driver by the elaimants and the relianeeplaced by the counsellor the appellanton the case oi The OrientalInsurance Co. Ltd. va'. Meena Variyaland Ors., 2007

(5) SCALE269, 1am constrainedto hold that the claimantscannotbe •faulted for not implcadingthe driver dl the ollending truck. Ihe record reveals that initially the driver of the offending truck was arrayedas a party respondent,to the proceedings,but sincc the name and address of the driver could not be ascertainedand the same were not furnished by the other respondents to the Claim Petition,, the driveroi'the offendingtruck was deleted from the array ofpartieson

20.02.2003. As noted by the Iciarned 'fribunal,notice was given to the owneroJ'theoffendingtruck by the I'ribunr.l,but notwithstanding the owner of the offendingtruck did not attend the court proceedings and chose to stay av/ay. Since neitherthe InsuranceCompanynor the owner of the offendingtruck disclosed the name of the driver, and even the police of the concernedPolice Station did not disclose the name ol'thc driverofthe offendingtruck,the claimantswere left with no option'butto pray for the deletionol the name ol the driver from MAC. APP. .iri/2(m andMACAPP Paf^e 12 of17 a/ the array of parlies. It was incumbentupon the policeto have issued notice under Seclioh 133 of the Motor Vehicles Act to the owner of the truck Ibr disclosingthe name of the truek driver, but it failed to do so. 'fhe relianceplaced by the counsel for the appellants,in the above context,on the judgmentof the SupremeCourt in the case o[ Meena Variyal (supra) is also misplaced. In this case, the name of the driver of the truck, Mahmood IJasan, was known to all concerned and it was in such circuriistances that the Hon'ble Supreme Court held that the fribunal ought to have directed the claimants to implead Mahmood 1lasan who was allegedlydrivingthe vehicle at the time of the accident, the rationale being that when a car belonging to the I owner, insured with the Insurance Company and being driven by a driver employedby the insured, meets with an accident, the primary liability under law for paymentof compensationis that of the driver, •fhe liability of the owner is only vicarious and that of the insurer is by virtue of the contractof Insurance-withthe owner. In the instant case, on the other hand, the name of the driver is not forthcoming on / the record and it is not known who was the driver when the truck was MA C: APP. 331/2008 and MA C.APP . PdUa 13 of17 parked in Lhe middle of the road. For the same reason, the reliance placed on behalf of the appellant upon the judgment of a Single Reneh of the Madhya Pradesh High Court in New India Assunmce Co. Ltd. V.V. Munnidevi and Ors., / (1994) ACC 648 is also misplaeed.

¶12Adverting next to the aspect of quantum of eompensation awardedby the learnedTribunal,in my opinion,.thelearnedTribunal eannot be faulted for assessingthe quantum of.compensationon the basis of the income-taxreturn of the deeeased lor the assessmentyear 1997-98, which was filed prior to the death ol the deceased, as it .pertainsto the financialyear 1996-97. Accordingto this Return, the deceased was earning.? 11,45,410/- per annum. Iwen though, subsequent to his death, his father became the proprietor of the business of the deceased,but the profit and turnover'ofthe business were reducedsubstantially,which fact is evidentfrom the income-tax returns.forthe assessmentyears 1999-2000to 2002-2003 placed on rceord as f:x.PWl/8(eollectively). I'hus, in my view, the.Tribunal rightly assessed the income of the deeeased to be in the sum ol MAC. APP. 331/2008anciMAC.APP 14 of17 \ ^ 11,46,000/-per annum. 'I'he deeeasedbeing self-employedand no other evidencehaving been broughtoh record to show a rising trend in his income,the Tribunalrightlydid not take into accountthe lliture prospectsof the deceased.

¶13As regardsthe deductionmade by the learned'Iribunaltowards the personal expensesof the deceased,I am at one with the learned counsel for the appellant-InsuranceCompany that the Tribunalought to have deductedone-half(1/2) insteadof deductingone-third(1/3''") of the income of the deceased towards his personal expenses, the deceasedbeing a bachclorand his only.dependentsbeing his parents, •fhus calculated,the annual loss of dependencyof the parents of the deceasedcomes to ^ 5,73,000/-per annum. It is settled law that this multiplicand must be augmented by tl{s; use, of an appropriate multiplierin consonancewith the age oJ 4he deceased or the age ol ihe claimants,whicheveris higher. It is not in disputethat the lather of the deeeased was 52 years of age on the datC' Oi the accidenlal death of his son. Thus, in my view, the appropriatemultiplierin consonance with the tabulated multipliers laid down in the ease oi MAC. APP:331/2008and MAC.APP 1'"'^"-'15 of 17 Surla Verma (supra) Would.bethe multiplierof 11: In this nlanner. the total loss ofdependencyofthe respondentsNo. 1and 2 works out to ? 63,03,000/-. Adding?25,000/-to the aforesaidsum ofmoney as awardedby the learnedTribunaltowardsloss of love and affectionol the deceased and tlineral expenses, the total amount payable to the parents-ofthe deceasedcomesto ? 63,28,000/-. The award amount is modified accordingly.

¶14In view of the aforesaid,the sum of? 63,28,000/-is adjudged 1,0 be the fair , and just, compensation payable to the legal representativesoJ' the deceased in the instantease alongVv'ithinterest thereon at the rate of 7% per annum as awarded by the learned Tribunal from the date ol the filing ol the petition till the date ol •realisation. In view of the l^ct that the amount of the award, in accordance with the Judgment of the learned Tribunal, is lying depositedwith the RegistrarGeneral ofthis Court in the torm ol an I'DR. the RegistrarGeneral shall release to the legal representatives of the deceased the amount of ? 63,28,000/- alongwith interest thereon at the rate of 7% per annum from the date of the filing of the MAr Ann. m/2l)08 andMACAPJ' ' Pii^e16of 17 'm. pctilion till payment. The balance amount, if any, shall be returned to the appellant-Insurance Company.

¶15Rcsultantly, the appeal of the Insurance Company is partly allowed and the appeal of the claimants is dismissed as being devoid of merit, fhere will be no order as to costs.

¶16Records of the learned Tribunal be sent back forthwith. September 13, 2011 km MAC. A PP. 331/2008 and MAC.APP REVA KHETl^PAL (JUDGE) Pase 17 of 17

^ IN THE HIGH COURT OF DELHI AT NEW DELHI I MAC. APP. 331/2008 UNITI'I) INDIA INSURANCE CO. LTD. Appellant 'J'hroLigh: Mr. L.K. Tyagi. Advocatc versus NKl'NA SOMANl &ORS. • • Ilespondenls Through; Mr. Satyavan Kudalvval, Advocatc for the,respondents No. land 2 g'/olAO/l I (CM No. Ho be converted in MAC. APP. No. NIU'NA SOMANl & ANR. Appellants Through; ' Mr. Satyavan Kudalvval. Advocatc versus - IJNlTliO INDIA INSURANCE CO. JTD. & ANR. Respondents Through: Mr..L.K. Tyagi-, A-dvocatelor the respondent Nd. 1 % Date of Decision ; September 13, 2011 CO RAM: HON'BLE MS. JUSTICE REVA KHETl^l AL 1. Whetherreportersof local papersmay be allowed to see the judgment? 2, To be reierred to the Reporter or not? 3. WhetherJudgment should be reported in Digest? MAC. A PP. 331/2008 ami MAC\APP Puse 1 of 17 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing.