United India Insurance Co. Ltd. v. Nikuna Somani & Ors.

1. Whether reporters of local papers may be allowed to see the judgment? 2, To be reierred to the Reporter or not?

3. WhetherJudgment should be reported in Digest? 2011:DHC:15041 JUDGMENT; REVA KHETIU.PAL, J.

1. By this common order, 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 interest at the rate of 7% per annum from the date ol the liling ol the petition. The appellant in the first appeal is, M/s. United India Insurance Co. Ltd., which has prayed for setting aside/modification of the impugned award, on a number ofgrounds, whereas the appellants in the second appeal, are the claimants, who seek enhancement ofthe 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.

2. The concise facts leading to 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 compensation on account- ofhis death in a road accidcnt which took place in the night intervening 16"Vl7" August, 1997. On the latelul night, the car of the deceased, being a Maruti car bearing.NoJ)L- 3CA-9612, coming from the side.of New Friends Colony, sniashed against tht back portion ofa stationary truck bearing No.ElRS-2102 which was parked' in the middle of the road on Modi Flyover, resulting in fatal injuries on the person ofRahul Somani, who expired on the spot.

3. I'he insured, that is, the owner of the ofl,ending truck, did not •contest the case despite service ofnotice upon^him and was proceeded ex purls. Av^'ritten statement was, however, filed by the insuiei, (the appellant herein), denying the contents of the Claim Petition and claiming that the truck had gone out oforder due to mechanical iault, 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 adequate indication to the oncoming vehicles. It was further stated in the written statement that the deceased was either under the inlluenee of liquor or do/ing while driving his car and had dashed against the rear portion of the parked vehicle insured with the appellant. It was A also pleaded that the aceident had not taken place due to the rash and negligent driving ofthe truck insured with the appellant, and that the police had been misled into registering the First Information Report bearing No.872/1997, which was subsequently cancelled and thus no charge-sheet was filed against the driver ofthe truck..4. The learned Tribunal, after scrutinizing the evidence on record, directed the appellant-Insurance Company to pay the awarded amount on the ground that on the date of the accident the vehicle involved was fully covered under a valid insurance policy, f:x.R2W2/l in the name of the respondent No.3-insured. fhe learned Tribunal llirther held that cancellation of the FIR pertaining to the accident did not absolve'the Insurance Company of its" liability to pay compensation to the third, party involved in the accident.

5. In the course of hearing before this Court, Mr. I..K. 'i'yagi, the learned counsel for the appellant has vociferously contended that 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. Tyagi relied upon the judgment of 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. According to him, the learned Tribunal ought to have apportioned' the liability and fixed the contributory negligence of the'deceased to the extent of 50% keeping in view the ratio of the judgment in Raj Rani's case (supra), lie llirther contended thatthere being no eye witness to the accident and no charge-sheet having been filed against the driver of the truck, the negligence on the part.of the truck insured with the appellant had 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 applicable to the lacts ol the case and in drawing adverse inference against the driver of the olTending truck on the ground that he did not appear in 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 appearing as a witness did not arise Y and consequently, no adverse inference couid have been drawn against him.

6. As regards the quantum of compensation awarded to the. legal representatives ofthe deceased, Mr. Tyagi submitted that the learned Tribunal erred- in considering the income of the deceased on the basis of his,income-tax return filed for the assessment year 1997-98 and in not taking into consideration the fact that the business continued even 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 Supreme Court in the case o[Smt. Sarlct Verma and Ors. vs. Delhi Transport Corporation and 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 deduction should have been not less • than one-half(1/2) of the income of the deceased. Relying upon the. judgment of the Supreme Court 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 [p A years, the appropriate multiplier eould not have been more than 8 years and the Tribunal erred in applying the multiplier of 11 years to ascertain the total loss of dependency of the appellants.

7. Needless to state, all the aforesaid contentions of the learned counsel for the appellant-Insurance Company were strongly rcluted by Mr^ Satyavan Kudalwal, the learned counsel for the ^ claimants/respondents No.l and 2, who sought to support the findings of the learned 'I'ribunal on all counts, except to urge that considering the age of the deceased, the amount of the award should have been more, keeping in view-the fact that had the deceased not met with the unfortunate accident his" income would have most certainly increased with the passage of time.

8. Adverting first to the issue of contributory negligence, the undisputed facts are that the claimants have proved on record copy oL the FIR as f-x.PWI/l and the appellant has 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 look placc. However, Mr. Tyagi^s xonlcntion regarding the contributory negligence ofthe deceased does not Inid lavour with me for the reason that the question as regards contributory negligence is essentially a question offact, and the fects in the instant case do not inculpate the deceased, hi the instant case, the accident occurred 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 investigation of case MR No.872/97 shows that, the place ofthe accident is in the middle ofthe road. It further shows that the stationary truck was lying parked in the middle ol the road abandoned by its driver in a dangerous condition, 'fhere is no evidence produced by the respondent No.3 owner to prove that the driver or any other person was left on the driver's seat who had the licence to drive the vehicle. There is also no evidence adduced by the respondent No.3 to prove that any indicator, indicating thafthe truck was stationary or non-operational, was there on the abandoned vehicle. As regards the contention of the counsel for the appellant that the deceased was either under the influence of alcohol or was, 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 inlluenee ofany drug or aleohol at the time ofthe aeeident.

9. I'he plea ofthe appellant that 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-with the police after the registration of the I'IR. Strangely, the appellant-Insurance Company has taken the plea that the rear red light ol the truck was on and stones and biicks had been placed around the non-functional vehicle, but not an iota ol evidence in this regard has been brought on record. Neither the 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 concluded that the truck driver was guilty ofviolation ofthe express provisions of Sections 122, 126 and 127 ol the Motor Vehicles Act, 1988 by leaving the offending truck unattended, vvilhoLil due and proper eaution, in the middle ofthe road, and that too on a ilyover. For the sake ofconvenience, Sections 122, 126 and 127 are reproduced hercunder: ' Section 122. Leaving 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 position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or 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 licensed to 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 127. Removal 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 parking is legally prohibited, its removal by a lowing service or its immobilisation by any means including wheel'clamping may be,0 \ authorised by a police officer in uniform having Jurisdiction... (2) Where an'abandoned, unattended, wrecked. • burnt or partially dismantled vehicle 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 towing service may be authorised by, a police officer having jurisdiction. (3) Where a vehicle is authorised to be removed under sub-section (1) or sub-section (2) by a police officer, the owner ofthe vehicle shall be responsible for all towing costs, besides any •other penalty!".:

10. lairther, on the aspect of negligence of the driver of the offending truck, the learned Tribunal has, in my view, rightly held that the standard ofproof is altogether differenL in criminal cases and in civil cases, 'fhe proceedings before the Motor Accidents.Claims Iribunal are of a civil nature and it is settled law that in civil cases it is the preponderance ofprobability and not the rule ofproof beyond any reasonable doubt which holds-the field. Adverse inference was also rightly drawn by the learned Tribunal against.the driver.who did not appear in the witness box to explain the manner in which the accident occurred. -w 11., As regards the non-impleadmenl ofthe driver by the elaimants and the relianee placed by the counsel lor the appellant on the case oi The OrientalInsurance Co. Ltd. va'. Meena Variyal and Ors., 2007 (5) SCALE 269, 1am constrained to hold that the claimants cannot be •faulted for not implcading the driver dl the ollending truck. Ihe record reveals that initially the driver of the offending truck was arrayed as a party respondent, to the proceedings, but sincc the name and address of the driver could not be ascertained and the same were not furnished by the other respondents to the Claim Petition,, the driver oi'the offending truck was deleted from the array ofparties on 20.02.2003. As noted by the Iciarned 'fribunal, notice was given to the owner oJ'the offending truck by the I'ribunr.l, but notwithstanding the owner ofthe offending truck did not attend the court proceedings and chose to stay av/ay. Since neither the Insurance Company nor the owner of the offending truck disclosed the name of the driver, and even the police of the concerned Police Station did not disclose the name ol'thc driver ofthe offending truck, the claimants were left with no option'but to pray for the deletion ol the name ol the driver from a/ the array of parlies. It was incumbent upon the police to have issued notice under Seclioh 133 of the Motor Vehicles Act to the owner of the truck Ibr disclosing the name of the truek driver, but it failed to do so. 'fhe reliance placed by the counsel for the appellants, in the above context, on the judgment of the Supreme Court 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 allegedly driving the 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 employed by the insured, meets with an accident, the primary liability under law for payment of compensation is that of the driver, •fhe liability of the owner is only vicarious and that of the insurer is by virtue of the contract of Insurance-with the 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 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.

12. Adverting next to the aspect of quantum of eompensation awarded by the learned Tribunal, in my opinion,.the learned Tribunal eannot be faulted for assessing the quantum of. compensation on the basis of the income-tax return of the deeeased lor the assessment year 1997-98, which was filed prior to the death ol the deceased, as it.pertains to the financial year 1996-97. According to 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'of the business were reduced substantially, which fact is evident from the income-tax returns.for the assessment years 1999-2000 to 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 \ ^ 11,46,000/- per annum. 'I'he deeeased being self-employed and no other evidence having been brought oh record to show a rising trend in his income, the Tribunal rightly did not take into account the lliture prospects of the deceased.

13. As regards the deduction made by the learned 'Iribunal towards the personal expenses of the deceased, I am at one with the learned counsel for the appellant-Insurance Company that the Tribunal ought to have deducted one-half (1/2) instead of deducting one-third (1/3''") of the income of the deceased towards his personal expenses, the deceased being a bachclor and his only.dependents being his parents, •fhus calculated, the annual loss of dependency of the parents of the deceased comes to ^ 5,73,000/- per annum. It is settled law that this multiplicand must be augmented by tl{s; use, of an appropriate multiplier in consonance with the age oJ 4he deceased or the age ol ihe claimants, whichever is higher. It is not in dispute that 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 appropriate multiplier in consonance with the tabulated multipliers laid down in the ease oi Surla Verma (supra) Would.be the multiplier of 11: In this nlanner. the total loss ofdependency ofthe respondents No. 1and 2 works out to ? 63,03,000/-. Adding? 25,000/- to the aforesaid sum ofmoney as awarded by the learned Tribunal towards loss of love and affection ol the deceased and tlineral expenses, the total amount payable to the parents-of the deceased comes to ? 63,28,000/-. The award amount is modified accordingly.

14. In view of the aforesaid, the sum of? 63,28,000/- is adjudged 1,0 be the fair, and just, compensation payable to the legal representatives oJ' the deceased in the instant ease alongVv'ith interest 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 deposited with the Registrar General ofthis Court in the torm ol an I'DR. the Registrar General 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 'm. pctilion till payment. The balance amount, if any, shall be returned to the appellant-Insurance Company.

15. Rcsultantly, 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.