United India Insurance Co Ltd v. Neeraj Pandey and Ors.

1. These appeals have been filed assailing the impugned award dated 24th January 2017 relating to injuries sustained by respondent no.1 in each of these appeals, being Neeraj Pandey and Shailly Pandey, husband and wife, respectively, who were involved in an accident which occurred on 09th September 2012, caused by allegedly rash and negligent driving of a Maruti Car bearing No. DL 1RT 0061.

2. MACT awarded compensation of Rs.11,42,718/- along with interest at 12% per annum in case of Neeraj Pandey, whereas compensation to Shailly Pandey was awarded at Rs.7,66,002/- along with interest at 12% per annum.

3. Mr. Pankaj Seth, counsel for the Insurance Company, challenges the award on the following counts: i. The MACT, despite having raised an issue relating to proof of negligence by the claimants, merely relied upon the judgment in Bimla Devi and Ors. v. Himachal Road Transport Corporation & Ors. (2009) 13 SC 530 and the charge-sheet, without giving any findings on the issue of negligence or examining the documents placed on record. ii. MACT awarded interest at the rate of 12% per annum, which, according to the appellant, is excessive. iii. Appellant's defence regarding invalid driving licence of the driver, respondent no.2, was not considered by the MACT. iv. Other issues were raised relating to quantum of compensation, inter alia, the adoption of minimum wages for Shailly Pandey, who was a homemaker, and the grant of compensation without any proof of occupation or loss of wages.

4. Mr. Shrey Chathly, counsel for claimant, has countered the same and placed his submissions on record. Issue of negligence

5. On the first issue of negligence, it is noted that accident in question occurred on 09th September 2012, when Neeraj Pandey was driving his motorcycle with his wife as a pillion rider. When they reached in front of Suraksha Nursing Home, Dilshad Garden, Main Road, the offending vehicle, being driven at a high speed, came from the Tahirpur side in the same lane as the motorcycle. It first hit a standing car which was in front of the motorcycle, thereafter hit the motorcycle of the claimants and subsequently struck another motorcycle. As a result of the collision, both the claimants fell down and sustained multiple injuries.

6. Neeraj Pandey suffered 31% permanent locomotor impairment in relation to his right upper and right lower limbs, whereas Shailly Pandey sustained 45% permanent locomotor impairment in relation to her right lower limb.

7. The MACT decided the issue of negligence in favour of the claimants on the basis of the testimony of the claimant, examined as PW[1], which remained unrebutted. Since the driver and the owner of the offending vehicle did not appear before the MACT, no evidence was led on their behalf to counter the allegations of negligence. It is undisputed that an FIR was registered, which culminated in the filing of a charge-sheet. The record also contains the MLCs, the site plan, and the mechanical inspection report.

8. The Court has perused the site plan, which is extracted as under for reference:.

9. It is quite evident that the offending vehicle, which was coming on the left side of the carriageway, suddenly swerved to the right and hit the standing car at point ‘A’, then the claimants at point ‘B’, and then another motorcycle at point ‘C’, and finally came to a stop at point ‘D’. Clearly, all the vehicles which were at A, B, and C were on the correct side of the carriageway, and there is no question of any contributory negligence either. The site plan makes it quite evident that the negligence was on the part of driver of the offending vehicle.

10. Moreover, testimony of PW[1] has to be considered in order to provide context to the manner in which the accident occurred. In his evidence by way of affidavit, PW[1] confirms the sequence of events leading to the accident. During his cross-examination by the Insurance Company, there was no confrontation on the facts and circumstances of the accident or the issue of negligence. Therefore, even though the MACT had not given proper reasons while recording its finding on negligence by adverting to the documentary evidence on record, in the opinion of this Court, the finding on Issue No. 1 regarding negligence stands confirmed. Rate of interest

11. On the second issue relating to the award of interest at the rate of 12% per annum, in light of the decision of the Supreme Court in Kaushnuma Begum (Smt.) & Ors. v. New India Assurance Co. Ltd. & Ors. (2001) 2 SCC 9, it would have to be seen in light of the prevailing fixed deposit rates of interest on the date of the accident, i.e. 2012. The rates prevailing at the relevant time, as reflected in the table issued by the RBI, were around 9% per annum. Accordingly, the rate of interest awarded is reduced to 9% per annum. Recovery rights

12. On the third issue of recovery rights not being considered by the MACT, since a specific averment was made by the insurance company through the testimony of their official R3W[1], who had stated specifically that the driving licence of Fakruddin, the driver, was issued by the District Transport Officer, Zunheboto, Nagaland and while report dated 05th September 2016, the Office of the DTO stated that the driving licence had not been converted into a smart card, as per the notification of the Transport Commissioner, Nagaland dated 01st August 2014. The following documents were appended along with the evidence: i. Report dated 05th September 2016 issued by the Office of the DTO Zunheboto, Nagaland Ex. R3W1/1, ii. Copy of the covering letter dated 07th September 2016 sending the report Ex. R3W1/2, iii. Forwarding letter 15th September 2016 sending the reports Ex. R3W1/3, and iv. The notification dated 01st August 2014 issued by the Office of the Transport Commissioner, Nagaland, Ex. R3W1/4. The copy of the driving licence was marked as Mark A.

13. On this issue, R3W[1] was not cross-examined since the driver and the owner did not appear before the MACT and, therefore, his evidence remained unrebutted. Considering these documents, the Court is of the view that even though the MACT has not considered these issues and the driver and the owner have not appeared before this Court as well, despite having been served, as noted by this Court's order of 04th November 2024, it appears that they have chosen not to counter this aspect. Accordingly, ‘recovery rights’ are granted in favour of the insurance company against respondent nos. 2 and 3, as the notification clearly states that the driving licence would stand to be invalid. Quantum of compensation

14. On the fourth issue regarding some elements of compensation, on the date of the accident, Neeraj Pandey was 32 years of age, while Shailly Pandey was 29 years old. MAC.APP. 442/2017

15. In the case of Neeraj Pandey, the MACT assessed functional disability at 20%, however, it did not grant any amount towards future prospects, as recorded in paragraph 17 of the impugned award. However, in view of the principles subsequently laid down in National Insurance Company Ltd. vs. Pranay Sethi & Ors. (2017) 16 SCC 680 and Smt. Sarla Verma & Ors v. Delhi Transport Corporation & Anr. (2009) 5 SCC 121, future prospects ought to have been awarded at 40% of the annual income.