IFFCO TOKIO GENERAL INSURANCE CO. LTD. v. Raman Kumar

AMAN DEEP SINGH S/o Sh. Santokh Singh, R/o Village & PO- Maragpur, Distt. Muzaffarnagar, U.P....Respondent No.2

3. SH.

KESAR SINGH Mandi Govind Garh, Distt. Fatehgarh, Sahib Sarhind, Punjab-140175...Respondent No.3 + MAC.APP. 1086/2018, CM APPL. 50775/2018 (stay)

IFFCO TOKIO GENERAL INSURNACE CO LTD Floor, versus

1. SMT.

RAJINDER KAUR W/o Late Sh. Jattinder Pal Singh....Respondent No.1

2. MS NANCY D/o Late Sh. Jaitinder Pal Singh...Respondent No.2

3. SH.

MANDEEP SINGH S/o Late Sh. Jaitinder Pal Singh..Respondent No.3

4. MS GAGAN DEEP KAUR D/o Late Sh. Jaitinder Pal Singh..Respondent No. 4

5. SH.

MADAN SINGH VIJ S/o Late Sh. Harnam Singh..Respondent No.5

6. SMT.

PRITAM KAUR VIJ W/o Sh. Madan Singh Vij All R/o L-59, near M Block, West Patel Nagar, Delhi-110008...Respondent No.6

7. SH.

AMAN DEEP SINGH R/o Village & Post- Maragpur, Distt. Muzaffarnagar, U.P. Also At: C/o Sh. Keshar Singh Mandi Govind Garh, Distt. Fatehgarh Sahib Sarhind, Punjab-140175.....Respondent No.7

8. SH.

KESAR SINGH S/o Sh.Amar Singh Punjab-140175....Respondent No. 8 + MAC.APP. 1096/2018, CM APPL. 51299/2018 (stay)

IFFCO TOKIO GENERAL INSURANCE CO LTD Floor, versus

1. RAJNI KOCHAR W/o Late Sh.Vikas Kochar.....Respondent No.1

2. MASTER PRANAV S/o Late Sh. Vikas Kochar (Respondent No. 2 being Minor is represented Through his mother, respondent No. 1)...Respondent No.2

3. SMT.

SHOBHA KOCHAR W/o Sh. Raj Kumar All R/o T-162/1, Near Sanatan Dharam Lal Mandir, Baljeet Nagar, Patel Nagar, SO Central Delhi-110008..Respondent No.3

4. SH.

AMAN DEEP SINGH R/o Village & Post-Maragpur, Tehsil Muzaffarnagar Distt. Muzaffarnagar, U.P...Respondent No.4

5. SH.

KESAR SINGH Punjab-140175....Respondent No.5 Through: Appearance not given. CORAM: HON'BLE MS.

JUSTICE NEENA BANSAL KRISHNA

JUDGMENT

NEENA BANSAL KRISHNA, J. MAC.APP. 1081/2018, MAC.APP. 1083/2018, MAC.APP. 1086/2018, MAC.APP. 1096/2018

1. The aforesaid four Appeals have been filed on behalf of the Appellant/Insurance Company, to challenge the compensation amounts given to the three deceased, namely, Mr. Puran Chand, Mr. Jitender Pal Singh and Mr. Vikas Kumar Kochar and one injured, namely, Mr. Raman Kumar, vide Common Award dated 18.09.2018, who were victims of the same accident, which took place on 24.08.2014.

2. Briefly stated, on 24.08.2014, Mr. Vikas Kumar Kochar was driving the Car bearing registration No. DL 9CQ 0625 in which Mr. Raman Kumar, Mr. Puran Chand and Mr. Jitender Pal Singh, were travelling as copassengers. At about 5:00 a.m., when they reached near Gaoshala, Tepla Road, Village Khaspur, the Offending Truck bearing registration No. HR 69 1708 was parked on the wrong side of the road, without any indicators or reflectors on. Due to this reason, the Car rammed into the rear portion of the Truck, consequent to which the Driver of the Car, Mr. Vikas Kumar Kochar and the two co-passengers, namely, Mr. Puran Chand and Mr. Jitender Pal Singh, died on the spot while the co-passenger, Mr. Raman Kumar sustained multiple injuries.

3. FIR No. 87/2014 under Section 279/304-A/427 of the IPC, 1860 was registered at Police Station Banur, District Patiala, Punjab, against the Driver /Sh. Aman Deep Singh. Respondent No. 2/Mr. Kesar Singh was the owner of the Offending Truck and the Truck was insured with the Appellant/Insurance Company.

4. Claim Petition bearing MACT No. 356641/2016 was filed by Mr. Raman Kumar/injured to claim compensation for the injuries sustained by him. He was granted compensation in the sum of Rs.11,42,000/- along with the interest @9% p.a.

5. Claim Petition bearing MACT No. 356783/2016 was filed by the Claimants on account of demise of Mr. Puran Chand, to whom compensation in the sum of Rs.10,24,498/- along with interest @9% p.a. was granted.

6. Claim Petition bearing MACT No. 356382/2016 was filed by the Claimants of the deceased, Mr. Vikas Kumar Kochar, who had been granted compensation in the sum of Rs.13,02,000/- along with the interest @9% p.a.

7. Claim Petition bearing MACT No. 356817/2016 was filed by the Claimants for compensation on account of demise of Mr. Jitender Pal Singh, who were granted compensation in the sum of Rs.11,51,000/- along with the interest @9% p.a.

8. Aggrieved by the findings of the Common Impugned Award dated 18.09.2018, in all the four aforesaid Claim Petitions, the Insurance Company has filed the present four Appeals.

9. The common grounds of challenge in all the four Appeals, are as under: -

(i) That the Contributory negligence of 50% has been attributed to the Victim/Car Driver/Vikas Kochar and 50% negligence of the Truck Driver/Offending vehicle. However, the evidence especially, the testimony of the eye witness clearly establishes that not only was there clear visibility but also the driver of the car was driving the vehicle at a high speed and failed to apply the brakes in time, which caused the accident. Thus, the entire negligence should be attributed to the Car Driver and no compensation should have been awarded against the alleged Offending Vehicle i.e. the Truck;

(ii) The recovery rights have been granted only against the Driver of the Offending Truck by observing that the Owner must have taken due care and caution while employing the Driver and checking his License. However, this observation to exonerate the owner is based on conjectures and surmises without there being any evidence. The recovery rights should have been granted against the Driver as well as the Driver;

(iii) The penal interest @12% has been imposed in case the compensation is not deposited within 30 days. Since the time of appeal is 90 days, the penal interest should have been invoked only after the period of 90 days.

10. In Appeal bearing No. MAC. APP. 1081/2018, pertaining to the death claim of Sh. Puran Chand, no additional ground has been raised to challenge the quantum of compensation, except the aforementioned common grounds.

11. In Appeal bearing No. MAC. APP. 1083/2018, pertaining to injury claim of the co-passenger/Mr. Raman Kumar, an additional ground to challenge the quantum of compensation is that the injured had suffered Permanent Disability of 61% on account of Loss of Speech, but the Functional Disability has been erroneously taken as 30%, which is on a higher side as the injured was a driver by the profession.

12. In Appeal bearing MAC. APP. 1086/2018, pertaining to death claim of Mr. Jitender Pal Singh, two additional grounds have been taken to challenge the quantum of compensation, which are as under: i. The Income has been assessed by taking Minimum Wages of a skilled worker without considering that the deceased was a food vendor and thus, Minimum wage of an unskilled worker would be applicable; and ii. The deduction towards the personal and living expenses has been made 1/4th which in fact should have been 1/3rd since the dependents were the major children and could not have been considered as dependents.

13. In Appeal bearing MAC. APP. 1096/2018, pertaining to death claim of Mr. Vikas Kumar Kochar/the driver of the Car, an additional ground to challenge the quantum of compensation taken is that the deduction towards the personal and living expenses have been made as 1/4th, by taking father as a dependent; in fact it should have been taken as 1/3rd deduction.

14. Submissions heard and record perused. Contributory Negligence of the Driver of the Offending Truck: -

15. Learned counsel on behalf of the Insurance Company has vehemently contended that it is the Car driven by the deceased, Mr. Vikas Kumar Kochar, who had rammed his car into the Stationary Truck, that was parked on the left side of the road. It is clearly established from the evidence that the speed of the Car was excessive and despite having sufficient time, the deceased, Mr. Vikas Kumar Kochar/Driver of Alto car was solely negligent in not applying the brakes thereby contributing to the accident.

16. Thus, the Learned Counsel has contended that the manner in which the accident is proved to have taken place, no negligence whatsoever can be attributed to the stationary Truck and the learned Trial Court fell in error in holding the negligence of the Offending Truck Driver as 50%.

17. To analyse the manner of accident and the negligence of the Offending Truck Driver, the testimony of the Injured-Sh. Raman Kumar and the eyewitness, Sh. Tapan Kumar, may be considered.

18. PW-1/Sh. Raman Kumar deposed that on dated 24.08.2014 at about

04.00. A.M, he was travelling as a passenger in Alto Car bearing No. DL-9- CQ-0625 which was being driven by Vikas Kochhar. When they reached at near Gaushala Tepla, the Offending Truck bearing registration No. HR 69 1708 was standing on the wrong side of the road, without any indicators or reflectors or caution signs and due to lights from the opposite side, the Alto car collided with the truck. Consequently, due to the impact, Vikas, Jatinder Pal and Puran Chand died on the spot and deponent sustained multiples grievous head injury and other grievous injuries all parts of his body.

19. PW1/Sh. Raman Kumar, in his cross-examination, further stated that the weather was clear and there was no fog. He further admitted that the Truck was parked on the left side of the road and there was no divider. The road was wide enough for more than two vehicles to pass simultaneously. He further deposed that the headlight of his Car was on and he had seen the Truck from a distance of about 10-15 feet.

20. PW-2/Sh. Tapan Kumar, has also supported the version of PW[1] and disclosed in his examination-in-chief that was following the Alto car in his own car. He further deposed that sharp headlight of the vehicle coming from the opposite directions blinded the deceased, Mr. Vikas Kumar Kochar for a moment and the Car rammed into the Truck parked on the side of the road. PW2-Mr. Tapan Kumar in his cross-examination, admitted that he was following the Car of injured, Mr. Raman Kumar and the distance between the two Cars, was about 25 meters. He, however, could not tell the approximate speed of the Car of the deceased but deposed that it was being driven at normal speed.

21. The comprehensive reading of the testimony of PW-1/Sh. Raman Kumar and PW-2/Sh. Tapan Kumar reveals that the truck was parked on the left side of the road and admittedly there were no indicators/reflectors or any sign of caution, placed around the Truck to indicate that it was a standing stationary on the road. The driver of the offending vehicle who parked or halted his vehicle on the road, whether due to mechanical failure or breakdown or any other emergency or even otherwise, ought to have taken precautionary measures and switched on the parking indicators or he could have put leaves/ branches/any other warning indicators for the benefit of the other vehicles plying on the road. The lack of due care and caution on part of the driver of the offending vehicle, is clearly established and the driver cannot escape liability by averring that the vehicle was stationary.

22. Similar observations were made in the recent judgment of Sushma V. Nitin Ganpati Rangole and Ors., Civil Appeal No. 10648-53 of 2024, decided on 19.09.2024, wherein the Apex Court while discussing the liability of the driver who had parked the offending truck in the middle of the road without any parking lights or warning indicators which led to an accident and ultimately death of 4 persons, observed that "Common sense requires that no vehicle can be left parked and unattended in the middle of the road as it would definitely be a traffic hazard posing risk to the other road users". It was opined that any unattended vehicle, parked in the middle of the road, without any parking lights switched on and without any markers or indicators being placed around the stationary vehicle so as to warn the incoming vehicular traffic, is a clear violation of law and the driver would be held responsible for the accident.

23. In view of the above discussed circumstances, it is discernible that the Truck Driver/Mr. Aman Deep Singh was negligent in parking the truck without proper indicators and the contention of the Insurance Company that the Truck was stationary is holds no water.

24. The other significant aspect is that the driver of the offending vehicle, who was the other best person to explain the circumstances, has chosen not to step into the witness box for which only adverse inference can be drawn against him. Furthermore, no cogent discrepancy had been brought forth in the testimony of the PW[1] and PW[2].

25. Pertinently, the Chargesheet had been filed in this case against the offending vehicle. In the case of Mangla Ram vs. The Oriental Insurance Company Ltd., AIR 2018 SC 1900, it has been held that filing of Chargesheet is sufficient proof of the negligence and involvement of the Offending Vehicle. This judgement was followed by the Coordinate bench of this Court in National Insurance Co., vs Pushpa Rana 2009 ACJ 287 Delhi.; United India Insurance Co. Ltd. v. Deepak Goel and Ors., 2014 (2) TAC 846 Del, and Amanti Devi and Ors. v. Maheshwar Rai, MAC Appeal no. 831/2015 decided on 19.11.2022)

26. Further, the Learned Tribunal has rightly observed that the driver of the Alto Car/ Late Sh. Vikas Kochar, was also driving the Alto Car at a very high speed because of which he failed to apply the brakes in times. It has also come in the cross-examination of Sh. Raman Kumar that they had already seen the truck from the distance 10-15 feet, which implies the driver/Sh. Vikas, due to the excessive speed of the case, was not able to exercise control and apply breaks in time.

27. Thus, after considering the manner of the accident, the testimony of the witnesses and the impact of the collision, the learned Tribunal has rightly held it to be a case of contributory negligence and attributed 50% negligence on the Truck Driver/Sh. Aman Deep Singh and 50% negligence on driver of the Alto car/Sh, Vikas Kochar.

28. Pertinently, no cross-objections have been filed by the legal heirs of Sh. Vikas Kochar, to assail these observations of 50% negligence of the Driver/ Sh. Vikas Kochar, and deduction of 50% from the compensation awarded to his legal heirs.

29. Additionally, the other 3 persons, namely, Jitender Pal Singh, Puran Chand and Raman Kumar were admittedly the passengers in the Alto Car, so there can be no deduction from their compensation on account of contributory negligence, as there is no evidence led to prove that they have contributed in the accident in any manner.

30. Therefore, there is no ground to interfere with the findings of the Learned Tribunal. Recovery Rights/Liability: -

31. The second ground of challenge taken is that the driving license of Mr. Aman Deep Singh was found to be fake and thus, recovery rights, which have been granted only against the driver, should have been granted against the owner, who has been erroneously exonerated.

32. The Insurance Company to prove the driving license that the driving license was fake, examined R3W1/Mr. Mohit Nagar, Senior Manager, who deposed that Notice under Order 12 Rule 8 CPC was issued to the Driver and owner. The copy of the Driving license-Ex. R3W1/5 was provided by the owner. The information was sought about the driving license from the issuing Authority, Nagaland under RTI, which gave a Reply- Ex.R3W1/6. It was stated in the Reply that no such license was ever issued and the same was found to be fake.

33. Consequently, the recovery rights against the owner, were claimed. Pertinently, while the Driver is primarily responsible for the accident and for payment of compensation, but the owner is vicariously liable to pay the compensation and Insurance Company is liable to indemnify the Owner in case, there is no breach of Insurance Policy proved.

34. In the present case, the owner had produced the copy of the driving license Ex.R3W1/5 that had been issued in the name of the Driver by the Transport Authority, Nagaland. Prima facie from the face of it, there is no indication of the driving license being apparently fake. The very fact that the driving license was supplied by the owner, establishes that he had taken due care and caution and even kept the copy of the driving license when he had engaged him as a Driver.

35. It has been settled by the judgment of United India Insurance and Co. Ltd. v. Lehru and Ors. 1(2003) ACC 611 (SC), that the Insurance Company cannot be permitted to avoid its liability only on the ground that the person driving the vehicle at the time of accident, was not having a valid license. It is not expected of the employer to verify the genuineness of a driving licence from the issuing authority at the time of employment. The employer needs to only test the capacity of the driver and if after such test, he has been appointed, there cannot be any liability on the employer.

36. It has been held in the case of United India Insurance Co. Ltd. vs. Anil Kumar and Ors., 2019 SCC OnLine Del 12181, if a vehicle owner finds the driving license valid on face value and has satisfactorily tested the driver’s skills before employment, they would be covered for liability against Claims.

37. When the owner hires a driver, he is duty bound to ensure whether the driver has a valid driving licence and also that he possesses requisite driving skills. Here, the owner had taken the copy of Driving licence of the driver, thereby indicating that he took the requisite steps while employing the driver. However, the owner cannot be expected to confirm the validity of the driving license not only from the Transport Authority which has issued the driving license, but also to verify the antecedents from the previous Transport Authority, as held in the case of Pepsu Road Transport Corporation Vs. National Insurance Company, (2013) 10 SCC 217.

38. In the present case, it emerges that due diligence had been exercised by the Owner while employing the driver. Therefore, the owner cannot be held to have committed breach of any terms of the Insurance Policy.

39. In the circumstances, the observations made by the learned Tribunal that while the owner is not liable but the Driver is liable to pay the compensation, is erroneous. The vicarious liability of paying the compensation rests on the owner who is liable to be indemnified by the Insurance Company as no breach of Insurance Policy is proved. Penal Interest: -

40. The third ground of challenge is that the penal interest has been imposed in case of non-deposit of the Award amount within one month, which is contrary to the Act.

41. The learned Tribunal has directed the Appellant/Insurance Company to deposit the Award within 30 days of the Award failing which the Insurance Company shall be liable to pay interest @ 12% p.a. for the period of delay.

42. It has been rightly contended that the time for filing the Appeal is 90 days and no penal interest should be imposed prior to this period.

43. Thus, in the facts of the present case, the imposition of penal interest for delay, is hereby set aside. Challenge to Quantum of Compensation granted to Sh. Raman Kumar (Injured) in MAC.APP. 1083/2018: -

44. The Insurance Company has challenged the quantum of compensation granted to Sh. Raman Kumar (Injured), on the grounds that the Permanent Disability of 61% suffered by the injured was on account of Loss of Speech. He was a Driver by profession and therefore, the Functional Disability of 30% has been assessed wrongly by the learned Tribunal.

45. The learned Tribunal referred to the testimony of the injured to observe that though he is a Driver of private vehicles, but because of difficulty in communication on account of impairment of speech, he would find it inconvenient to express himself and the Functional Disability was consequently assessed as 30%.

46. It is not in dispute that the injured is a Driver by profession. A driver who is 61% disabled due to the loss of speech would face significant functional difficulties, particularly in communication, emergency situations, and interaction with other road users. The inability to speak could make it challenging to explain situations to authorities, request assistance from fellow drivers, navigating unfamiliar routes and in emergencies, such as medical crises or road accidents, the driver’s inability to vocally call for help could delay crucial assistance.

47. Thus, the learned Tribunal has rightly observed that he would fact a difficulty in communicating while working as a commercial Driver.

48. There is no infirmity in concluding the Financial Disability as 30% and this does not merit any interference. Challenge to Quantum of Compensation granted to Legal Heirs of Sh. Jitender Pal Singh (Deceased) in MAC.APP. 1086/2018: -

49. The Insurance Company has also challenged the quantum of compensation granted to the Legal Heirs of Sh. Jitender Pal Singh (Deceased). Assessment of Income: -

50. The Insurance Company has claimed that the deceased was aged 50 years and was working as a food vendor. His income should have been taken as that of unskilled worker and has been wrongly assessed as per the Minimum Wages of the skilled worker.

51. It has emerged in evidence of the wife, PW1-Smt. Rajinder Kaur, that the deceased was working as a Food Vendor and he was 12th Class pass. Though, no Education Qualification Certificate of the deceased was produced, but being a food vendor definitely entails some skill and therefore, the learned Tribunal was in acknowledgement of the skills, had rightly assessed the income of the deceased on the basis of the Minimum Wages of a skilled worker. There is no ground for interference in the same. Deduction towards personal expenses: -

52. The second ground taken to challenge the quantum of compensation is that the deduction towards the Personal and Living Expenses of the deceased, have been erroneously taken as 1/4th instead of 1/3rd since the children were major and therefore, could not have been considered as dependent.

53. The learned Tribunal has observed that the deceased was survived by his Wife/ Smt. Rajinder Kaur; Petitioner No. 2/Ms. Nancy, the daughter who got married prior to the accident and was residing in a matrimonial home; the Petitioner No. 3/Mr. Mandeep Sing, who started doing a job after the demise of father, thereby implying that he was dependent upon the deceased at the time of accident; Petitioner No. 4/Ms. Gagan Deep Kaur, who was a minor daughter and consequently dependent upon the deceased; lastly, Mr. Madan Singh Vij and Smt. Pritam Kaur Vij, the old and aged parents of the deceased. Thus, considering the Minor Daughter, the wife, the elder son and the two old parents as dependants, a deduction of 1/4th was made.

54. The argument of the Insurance company is not tenable as the elder son, though a major, was dependant upon the deceased when he was alive and had only started working after his demise. Further, the even if the contentions of the Insurance Company are accepted, then also there are four dependents i.e. the wife, the minor daughter and the old-aged parents. Thus, there being more than three dependants, 1/4th deduction towards the Personal Expenses has, therefore, been rightly made by the learned Tribunal.

55. There is no ground to interfere with the quantum of compensation granted to the Claimants on account of demise of Sh. Jitender Pal Singh. Challenge to Quantum of Compensation granted to Legal Heirs of Mr. Vikas Kumar Kochar (deceased) in MAC.APP. 1096/2018: -

56. The Insurance Company has also challenged the quantum of compensation granted to the Legal Heirs of Mr. Vikas Kumar Kochar (deceased) on account of deduction towards Personal and Living Expenses.

57. It has been claimed that the deduction has been made of 1/4th towards the Personal Expenses when in fact it should have been 1/3rd.

58. The record shows that the deceased was survived by his wife/Smt. Rajni Kochar, son/Master Pranav, mother/Smt. Shobha Kochar and father/Raj Kumar. Taking all four as dependents, the learned Tribunal has deducted 1/4th towards the Personal Expenses.

59. There is no evidence shown that the father was a not dependent upon the deceased. Thus, there is no ground for interfering in the findings of the learned Tribunal and the contention of the Insurance Company is not tenable. Conclusion: -

60. There is no merit in the common grounds and the grounds to challenge to quantum of compensation, except the challenge to the penal interest, as decided by the Common Impugned Award dated 18.09.2018.

61. Therefore, the penal interest is set aside in all the four Appeals bearing MAC. APP. 1081/2018, MAC. APP. 1083/2018, MAC. APP. 1086/2018 and MAC. APP. 1096/2018,

62. All the four Appeals are accordingly, disposed of, along with the pending application(s), if any.

63. The statutory amount in all the Appeals be returned to the Insurance Company, as per rules.

JUDGE MARCH 11, 2025