Through: Mr. Pankaj Seth, SC for v. ASHOK KUMAR ARORA & ORS

6. Total Loss of Dependency Rs. 19,08,842/-

7. Loss of Love and Affection Rs. 25,000/-

8. Loss of Consortium Nil

9. Loss of Estate Rs. 10,000/-

10. Funeral Expenses Rs. 25,000/- Total Compensation Rs. 19,69,842/- Interest 7.5% Analysis

11. Mr. Pankaj Seth, counsel appearing on behalf of appellant, contended that there was no statement in the FIR attributing negligence to late Shri. Dipankar Malik. There was neither pleading nor evidence to enable the Tribunal to hold that the driver of the car had contributed to the accident. It was submitted that the Tribunal failed to appreciate the Criminal Court Records appended to the chargesheet, which were in consonance with the decision of this Court in National Insurance ` Company Limited v Pushpa Rana 2008 (101) DRJ 645, wherein it was held that the Criminal Court Records are sufficient to establish negligence of the offending vehicle. It was further contented that the truck driver failed to prove that he had been wrongly impleaded in the criminal case and had taken all precautions to avoid accident.

12. On issue of compensation, it was contended that the Tribunal had wrongly taken the income of the deceased at Rs.17,140/-, whereas he had left his job with M/s Pharos Call Center, and in the absence of evidence proving employment with Hinson IT Solution Private Limited [subsequent employer], it could not be held that deceased was fully employed. It was further contended that the Tribunal erred in granting a 50% increase towards future prospects without sufficient evidence. Moreover, Rs. 25,000/- awarded towards future expenses was not in accordance with settled principles.

13. Ms. Suman Bagga, counsel for Royal Sundaram Alliance Insurance Co. Ltd [respondent no.5], insurer of the truck, contended that no appeal had been preferred by the owner of the car, i.e., M/s. P.Net Solutions Private Limited, and since the driver had expired, the insurance company [appellant] could not now take the plea of no negligence on part of the car driver.

14. It was submitted that the Insurance Company was, therefore, estopped from denying the claim on the basis that there was no negligence on part of the car driver. Since the driver had died in the ` accident and could not lead any evidence, and the owner of the car neither disputed the accident/negligence nor filed any appeal, therefore the present appeal ought to be dismissed.

15. Ms. Suman Bagga, arguing on behalf of the respondent no.5/ Royal Sundaram Insurance Company further invoked the principle of res ipsa loquitur [which means things speaks for itself], contending that the circumstance of collision itself established negligence on the part of the car driver, particularly as the truck was stationary.

16. It was further submitted that proceedings before the Tribunal are in the nature of an inquiry, placing reliance on the decision of the Supreme Court in Nishan Singh & Ors v. Oriental Insurance Co. Ltd. (2018) 6 SCC 765, wherein the Court has taken into account a rare collision case and stated that as per applicable regulations, it is the duty of the car following a vehicle to keep sufficient distance.

17. The Court has considered the submissions of the parties, perused the records and reviewed the analysis rendered by the Tribunal. The owner of the car in which the deceased was travelling was M/s P. Net Solutions, whereas the appellant is the insurer.

18. FIR was registered on the basis of the statement of Neeraj Garg, PW[4], who stated that on the 13th April 2009 evening along with his friends were going in their vehicles from Delhi to Agra. In the Optra car bearing registration no. DL-4C CA-4959, his friends late Shri. Dipankar Malik, Gurmeet, Dishant Arora and Bhuvan were there and they were ` ahead of Neeraj Garg’s car. He stated that one loaded trailer truck was standing in the middle of the road and the Optra car rammed into the trailer truck without any reason and due to the collision, the car turned over and was seriously damaged. They took out their friends from the Optra car but Dipankar Malik and Gurneet died on the spot whereas Dishant and Bhuvan were taken for in an ambulance to a hospital in Palwal. The driver of the truck, as per Neeraj Garg, ran away, lot of crowd collected and then he gave the statement. For ease of reference the said statement by way of an affidavit [Exhibit PW4/A] is extracted as under:

19. The testimony of Neeraj Garg would, therefore, become critical in this regard since not only was he an eyewitness but also he was a friend of the deceased.

20. He stated in his evidence filed through affidavit that he saw a trailer truck standing in the middle of the road which was negligently parked without any indication of parking, having no light, with the result that the car driven by the deceased struck against a trailer truck and was totally crushed. He blamed the trailer truck negligently parking in the middle of the road with no indicators. There’s no other evidence on record which gives any other circumstance in which the truck was parked. The driver did not enter into the witness box to show that he had taken all precautions to avoid the accident by switching on the indicators or other measures.

21. In his cross-examination he stated that the Mathura Highway was a double road and the width of one side of the road was about 20-22 feet with a divider in the middle of the two roads. The distance between his car and the car driven by the deceased was about half a kilometre and they reached the place of the accident immediately at the time of the accident. The speed of his car would have been around 60 km per hour. ` He denied that the deceased was driving at a fast speed. The part of Neeraj Garg’s testimony is extracted as under: “It is wrong to suggest that neither the truck was parked on extreme left side of the road nor its parking lights were on. It is wrong to suggest that there was no proper lighting at the place of accident. It is wrong to suggest that there was sufficient space on the right side of the parked truck to enable vehicles to pass through. It is correct that lane for the car on the road was on the right side. It is wrong to suggest that the accident took place due to negligence of the deceased himself.”

22. Reliance placed on FIR simpliciter and the chargesheet indicating that it was complete negligence of the driver, cannot be taken as gospel truth considering the circumstances in which the truck was parked, the reasons for it being parked, the location of where it was parked and the fact that indicator lights were on or not.

23. In the written statement, the driver had stated that necessary precautions had been taken and he had switched on the indicators as a precautionary measure and also put green leafs of the tree on both sides of the truck. The assessment by the Tribunal is a process of inquiry and is based on preponderance of probability. In this case there was a truck which was stationary on the highway and Optra car rammed into it from the back. The time of the day was 6 a.m. and the accident occurred on 13th April 2009. Being that time of the year when at 6 a.m. there would be sufficient light to see whether that there was a truck standing in the ` middle of the road, Tribunal is not amiss to place contributory negligence also on the driver of the Octra car i.e. the deceased.

24. The Courts have examined the issue of the rear collisions with a stationary vehicle in the following decisions: i) In Jumani Begum v Ram Naryan, (2020) 5 SCC 807, the Supreme Court held that where substantive evidence establishes that a trailer truck was parked on the road at night [9 p.m.] without reflectors or warning indicators, the Tribunal cannot proceed on conjecture to attribute contributory negligence to the deceased, and such a finding is unsustainable. Relevant paragraphs are extracted as under:

7. MACT then discussed the evidence of the driver of the truck trailer, AW 1. After analysing the evidence of the driver, MACT held that his evidence did not inspire confidence, when he stated that indicators on the truck trailer had been lit. On the contrary, the eyewitness, AW 2, in the course of his cross-examination, denied the existence of reflectors at the spot. MACT noted that it did not appear that the truck trailer had been parked outside the area of the pakka road. In spite of its analysis in the above terms, MACT surmised that if the lights of the motorcycle were lit, the deceased would have been able to avoid the accident. This part of the reasoning of MACT is purely a matter of surmise. Once the substantive evidence before MACT established that the truck trailer had been parked on the road at night without any reflectors, we are of the view that there was no reason or justification for MACT to proceed on the basis of conjecture in arriving at a finding of contributory negligence. We find from the judgment of the High Court that this aspect has not been discussed at all and the High Court simply ` proceeded to confirm the finding of contributory negligence. Consequently, on the first limb of the submission, the learned counsel appearing on behalf of the appellant is correct and the submission requires to be accepted.” (emphasis added) ii) The Supreme Court, in Sushma v. Nitin Ganapati Rangole & Ors., 2024 SCC OnLine SC 2584, has reiterated that parking a truck in the middle of a highway without any warning signs constitutes a clear violation of statutory safety norms, and in such circumstances, fastening contributory negligence on the driver of the moving vehicle by invoking the principle of last opportunity would be legally impermissible. Relevant paragraph is extracted as under:

25. However, the aforesaid principles cannot be applied as an inflexible rule. Determination of negligence must necessarily turn on the specific facts and surrounding circumstances of each case, including the time of the accident, visibility conditions, location of the stationary vehicle and the conduct expected of a reasonably prudent driver. Therefore, while the legal position is well settled, its application depends upon the factual matrix of the case at hand. The decisions mentioned above relate to night time and not day time. Therefore, there is a fundamental difference in circumstances since in this case it was basis on an April morning having enough dawn light to spot a large vehicle on the road.

26. As regards the computation, considering that letter dated 11th December 2006 of M/s Pharaoh's Call Net was exhibited as Exhibit PW-1/6, the Tribunal was not amiss in considering the employment of the deceased and the income of Rs.17,140/-. In fact the Tribunal ` disregarded the witness from Standard Chartered Bank where it was stated that he was earning a salary of Rs.18,090/-, or even the salary slip of M/s Hinson IT Solutions Private Limited where the salary of the deceased was Rs. 23,000/-. Since no witness was examined for M/s Hinson IT Solutions that was not considered.

27. The estimate taken from the salary slip shows the gross salary with effect from 01st January 2007 as Rs. 19,000/- is untenable. PW-1, mother of the deceased stated in paragraph 5 of her affidavit by way of evidence that he was working in a call centre, was a talented boy intermediate education acquired proficiency in the work of a Tele Caller and worked in various call centres; though at the time of the death he was drawing a salary of Rs.23,000/- but was working previously at M/s Pharaoh's call centre drawing a salary of Rs. 19,000/-. He was later working also with M/s Nexussons which was owned by late Shri. Dipankar Malik, who was driving the vehicle. Therefore no record of that firm was available.

28. As per National Insurance Co. Ltd v. Pranay Sethi (2017) 16 SCC 680, the deceased was 21 years of age at the time of his death, the loss of future prospects would be calculated at 50%, since he was in a series of jobs as a call center executive.

29. Considering he was a bachelor, the deduction of half 50% of the income was also correct. Therefore, there can be no quarrel with monthly and annual loss of dependency. `

30. The multiplier as per National Insurance Co. Ltd v. Pranay Sethi (supra) for 21 years should be considered as ‘18’ as opposed to ‘13’ which was considered from the age of the mother of the deceased which is a concept now rejected by the courts as per paragraph 59.[7] of Pranay Sethi (supra). Relevant paragraph is extracted as under:

31. The computation for loss of love and affection would be ignored in view of the judgment in United India Insurance Co. Ltd. v. Satinder Kaur (2021) 11 SCC 780.

32. In Magma General Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130, the Supreme Court clarified that consortium is a comprehensive term covering spousal, parental and filial consortium, recognising the companionship, care, affection and guidance lost by the family due to the death. It emphasised that consortium reflects evolving societal values and that the loss of a child causes immeasurable agony warranting compensation beyond mere economic loss. The Supreme Court held that the Motor Vehicles Act, being a beneficial legislation, entitles parents and children to consortium in cases of such deaths, resolving earlier uncertainty in this regard. Relevant paragraphs are extracted as under: `

33. Accordingly, loss of consortium, as per Magma General Insurance Co. Ltd v. Nanu Ram (supra) and Pranay Sethi (supra) ` particularly as per paragraph 59.8, will be taken as Rs.80,000/- [Rs.40,000/- x 2].

34. For loss of estate it will be Rs.15,000/-; for funeral expenses it should be Rs.15,000/-.

35. As per above assessment, following is the revised computation of compensation:

4 Monthly loss of dependency [(A +B)-C = D] Rs. 12,236.1/- Rs.12,236.[1] /- 5 Annual loss of dependency (D x12) Rs. 1,46,834/- Rs.1,46,834 /- 6 Multiplier (E) 13 18 7 Total loss of dependency (D x E = F) Rs. 19,08,842/- Rs. 26,43,012/- 8 Medical expenses (G) Nil Nil

11 Compensation for loss of estate (J) Rs.10,000 /- Rs.15,000 /- 12 Compensation towards funeral expenses (K) Rs. 25,000/- Rs.15,000 /- TOTAL COMPENSATION (F+G+H+I+J+K = L) Rs.19,68,842 /- Rs.27,53,012 /- RATE OF INTEREST AWARDED 7.5% 7.5% Conclusion

36. For the aforesaid reasons, while affirming the finding of contributory negligence as returned by the Tribunal, the impugned award is modified to the limited extent of enhancement of compensation. The compensation is enhanced by a sum of Rs. 7,84,170/-, as computed hereinabove.

37. The enhanced amount, along with interest at the rate of 7.5% per annum from the date of filing of the claim petition till realisation, shall be deposited by the appellant/Insurance Company before the Tribunal within a period of eight weeks from today.

38. Upon deposit, the disbursement of the enhanced compensation shall be as per the directions passed by the Tribunal.

39. List before Tribunal on 11th March 2026.

40. Accordingly, the appeal is partly allowed in the aforesaid terms and disposed of.

41. Pending application (if any) are rendered infructuous. `

42. Statutory deposit (if any) shall be returned to appellant.

43. Judgment be uploaded on the website of this Court.

ANISH DAYAL (JUDGE) FEBRUARY 19, 2026/RK/tk