Full Text
HIGH COURT OF DELHI
JUDGMENT
M/S THE NEW INDIA ASSURANCE CO LTD..... Appellant
Through: Mr. Navdeep Singh, Adv.
Through: Mr. Shayam S. Sharma, Rajiv K. Nanda, Mr. Sanjeev Kumar
Baliyan, Mr. Nirbhay Sharma and Mr. Yash Yadav, Advs. for
R-1 to 4.
Mr. Pankaj Seth, Adv. for R-9.
1. This judgment shall decide the present appeal filed by the appellant/Insurance company in terms of Section 173 of the Motor Vehicles Act, 1988[1] assailing the quantum of compensation decided vide the impugned award-cum-judgment dated 21.03.2016 passed by the Motor Accident Claims Tribunal, Patiala House Courts, New Delhi[2] in case No. 90/16/2010[3] titled as „Smt. Sukhpal Kaur v. Vinglesh Chand and Others‟., granted in favour of the claimants/respondent No. 1 to 4. MV Act MACT Claim Application
FACTUAL BACKGROUND:
2. Briefly stated, it was the case of the claimants that on 13.10.2008, Sh. Iqbal Singh (deceased herein) aged 64 years, was travelling in Indica car bearing No. DL-3CW-8279 (herein referred to as the „offending vehicle‟) which was being driven by Vinglesh Chand/respondent No.1/driver[4], registered with Sohan Lal/respondent No.2/owner[5] and insured with respondent No.3/New India Insurance. At about 5:30AM, when they reached near Hapur Bye Pass, the driver lost control over the vehicle and dashed the vehicle against a stationary truck bearing No. UP-2G-9660 from behind, as a result of which, the deceased sustained fatal injuries. No FIR was registered with respect to the incident, but a G.D. entry No.11 was recorded on 13.10.2008. Subsequently, a claim petition was filed by the respondents No.1 to 4 on 07.04.2010. The deceased was survived by his wife, two sons and a daughter.
3. Respondent No.1, i.e. driver of the Indica Car, filed a reply stating that the accident took place due to the negligent act of the truck driver, who left the truck in the middle of the road without any headlights or the parking lights on. The respondent No.2/owner and respondent No.3/insurer stated that the petition is bad for non-joinder of necessary parties as the driver, owner and insurer of the truck involved, have not been impleaded as a party in the present matter. On Section 2(9) of MV Act: “driver” includes, in relation to a motor vehicle which is drawn by another motor vehicle, the person who acts as a steersman of the drawn vehicle; Section 2(30) of MV Act: “owner” means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement; the other hand, respondent No.4/Jahangir Alam and Tanvir Ahmed, who were the driver and registered owner of the truck respectively, stated that the truck was stationed/parked on the left side of the road and the accident took place due to recklessness attributable to the driver of the Indica car, who was driving the vehicle in a rash and negligent manner.
PROCEEDINGS BEFORE THE TRIBUNAL AND IMPUGNED ORDER:
4. Based on the pleadings, the learned MACT framed the following issues:
1. “Whether the deceased sustained fatal injuries in the accident which occurred on 13.10.2008 at about 5.30 am near Hapur Byepass, towards Ram Nagar, Nainital, Uttrakhand caused by rash and negligent driver of car make Indica bearing no.DL-3CW- 8279being driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP”
2. Whether the LR‟s of deceased are entitled for compensation? If so, to what amount and from whom?
3. Relief?
5. Regarding Issue No.1, the learned MACT relied upon the testimony of Yajuvandar Singh (PW[2]), who categorically deposed about the date, time and manner of the accident to the effect that the offending vehicle hit the stationary truck from behind. In view of the aforesaid, the learned MACT held that the driver/respondent No.1 had been guilty of rash and negligent driving. The relevant observations are reproduced below:
6. As regards the determination on the quantum of compensation, the petitioner/wife of the deceased relied on the Income Tax Records (ITRs) for the year 2006, 2007 and 2008 so as to prove the income of her deceased husband, who was an NRI and a U.S. citizen dealing in the business of overhauling of trucks. Learned MACT held that the wife of the deceased was the only dependent and assessed the income of the deceased at Rs.31,57,050/- and granted a compensation of Rs.2,23,34,350/- (Rupees Two Crore Twenty Three Lakhs Thirty Four Thousand Three Hundred Fifty Only) with interest @ 9% p.a. The germane observations are reproduced below:
7. Further, learned MACT vide paragraph (31) and (34) of the impugned order held that the driving licence[6] issued to respondent No.1 was fake, but that did not discharge the insurer/respondent No.3 from its liability to pay the compensation. Learned MACT held that the onus was on the insurer to prove that the insured did not take adequate care and caution to verify the genuineness of the licence. The relevant observations in this regard are:
Section 2(19) of MV Act: “learner‟s licence” means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive as a learner, a motor vehicle or a motor vehicle of any specified class or description;
GROUNDS FOR APPEAL:
8. The impugned order has been assailed by the respondent No.3/ New India Insurance inter alia on the grounds that the onus to prove the negligence of the driver beyond reasonable doubt was upon the claimant, which was not discharged inasmuch as the attorney of the claimant neither pursued for the registration of any FIR nor asked for any investigation; and that the learned MACT committed grave irregularity in assessing the financial dependency since no evidence was led that the deceased was filing the income tax returns and no bank account details had been furnished in this regard.
ANALYSIS AND DECISION:
9. I have given my thoughtful consideration to the submissions advanced by learned counsels for the rival parties. I have gone through the entire record of the case including the digitized trial court record.
ISSUE OF WRONG DOING:
10. Insofar as the plea raised by the appellant/Insurance Company that no evidence has been led with regard to rash and negligent driving of respondent No. 1 is concerned, the same is misconceived and untenable in law. Learned MACT vide the impugned judgment-cumaward dated 21.03.2016, raised a specific issue as to whether there was any rash and negligent driving of the Indica car bearing No. DL- 3CW-8279 by respondent No.1 and it was observed that the relevant documents with respect to the accident had been placed on the record by PW-1, who was a special attorney of the petitioner/claimant and the learned MACT alluded to the testimony of PW-2/Yajuvandar Singh, who testified that on the date of incident, he along with his friend Shamsher Singh was going from a village to Anaj Mandi, Hapur and at about 5.30 AM, when they reached at Hapur bypass, he saw one silver grey colored Tata Indica car coming from Delhi end and going towards Garh Mukhteshwar, and after overtaking his tractor from the right side, the said Indica car dashed into the back/rear side of the stationary truck at a further distance of 70 metres to 100 metres ahead and they managed to pull out the injured/driver, but the copassenger on the adjoining front seat was badly entangled in the rear of the truck; and after some time, the police came and with the help of a crane, the co-passenger/deceased was taken out of the car. He stated in the cross-examination that he had given the statement to the police. He denied the suggestion that the truck was parked on the extreme left/correct side of the road and that its driver had taken proper precautions. He denied the suggestion that he had not seen the occurrence of the accident or that he was not present at the site of the accident.
11. The bottom line is that the presence of PW-2 was not doubted at the spot as an eye witness to the accident. Now coming to the factual matrix of present case, it can be seen that PW[2] has confidently deposed about the date, time and manner of the accident. Further, all the respondents have admitted the factum of the accident. They have also admitted that the offending vehicle hit the stationary truck from behind. The contention of respondent No.1 that he has been falsely implicated in the present case and the accident has taken place due to the negligence on the part of the truck driver, is belied from the evidence on the record. Further, respondent No.1 did not get himself examined, nor did he bring a witness in his favour, for which adverse inferences can be drawn against him. The hitting of the stationary vehicle from behind amounts to negligence on the part of respondent No.1. In this regard, the learned MACT rightly relied on a catena of decisions by the Supreme Court in Bimla Devi v. Himachal Road Transport Corp.(II)7 and Parmeshwari v. Amir Chand[8].
12. Suffice to state that the learned MACT took a holistic view of the matter and by way of preponderance of probabilities, it was found that respondent No.1 was guilty of rash driving inasmuch as it was being driven at a fast speed from Delhi to Garh Mukhteshwar and after over taking a tractor from the right side, it dashed into the rear side of the stationary truck.
QUANTUM OF COMPENSATION:
13. Another plea that has been advanced by learned counsel for the appellant/Insurance Company is that the learned MACT failed to appreciate that the ITR returns filed by the petitioner/claimant were their joint returns along with his wife and taking this Court through the relevant documents, it was urged that the total income after the tax came to be US $ 21,059 per annum, which would show that each one of them was earning probably around US $10,000 per annum, and lastly, since the petitioner/claimant was the only financial dependent/legal heir, a deduction of 1/2 was warranted, whereas 1/3rd has been deducted towards personal use and expenses by the learned MACT.
14. First things first, there is no merit in the plea taken by learned counsel for the appellant company that the Income tax returns are the joint tax returns of the deceased and his claimant-wife. A perusal of the ITRs would go on to show that the deceased was being assessed for income tax in the “self-employed” category and as per the legal requirement prevalent in USA, he had indeed indicated the SSN 9 of his wife, but it was only the deceased who was gainfully employed, which is evident from the fact that the SSN of both of them were indicated on the ITR (Ex.PW-1/8) (colly).
15. Having said that, there seems to be no foundation to the assumption made by the learned MACT that the maximum amount of combined wages and self-employment earnings were subject to social security @ $97,500 (USD). Although no documentary evidence is led, it is logical to assume that the social security allowance, if any, being availed by the deceased, was coterminous with his death. There is no clear averment if the claimant has been getting a separate social security allowance either. The fact remains that the ITRs (Ex. PW-1/8) have not been proven in accordance with law. The same have not been certified as per the laws prevalent in USA or through the Indian Embassy/Consulate. The same are not even the downloaded copies from the official website of the US Revenue Authorities.
16. Be that as it may, since the proceedings before the learned MACT are summary in nature by virtue of Section 169 of the MV Act, what this court finds is that the documents brought on the record raise an inference that the deceased was not only deriving wages but was also self-employed. The wages for the relevant period as well as the Adjusted Gross Income figures are as under: Wages (in USD) 2005 2006 2007 2008 11,403 11,923 15,971 14,454 CORRESPONDING FIGURES Adjusted Gross Income (in USD) 2005 2006 2007 2008 26,065 28,593 28,268 15,034
17. Based on the aforesaid data that is deciphered from the ITRs (Ex. PW-1/8), it is clear that it was not the combined income, but sole income of the deceased. It would be just and reasonable to assume that the deceased was earning about $28,000 p.a. Therefore, 1/2 is deducted towards personal use and expenses of the deceased and the loss of dependency comes to $14,000/-. Taking into consideration the rupee-dollars currency conversion rate @ Rs.48.57 prevalent at that time, the amount comes to $6,79,980/-. Further, adopting the multiplier of „7‟ as per the decision in the case of Sarla Verma v. DTC10, total loss of financial dependency comes to Rs. 47,59,860/-. As the deceased was 64 years of age, no loss of future prospects is to be reckoned in terms of the decision in National Insurance Co. Ltd.
v. Pranay Sethi11. Lastly, taking into consideration the loss of estate @ Rs.15,000/-, loss of consortium @ Rs.40,000/- and funeral expenses @ Rs.15,000/- as per Pranay Sethi (supra) and loss of love and affection @ Rs.1,00,000/-, the total amount of compensation comes to Rs. 49,29,860/- (Forty Eight Lacs Twenty Nine Thousand Eight Hundred Sixty Only). Heads under Compensation Amount (In Rupees) Total loss of financial dependency 47,59,860/- Loss of consortium 40,000/- Loss of estate 15,000/- Funeral expenses 15,000/- Loss of love and affection 1,00,000/- Total Compensation 49,29,860/-
18. A careful perusal of the record shows that the present appeal was filed on 11.07.2016 and the operation of the impugned judgment had been stayed. Therefore, in the totality of the facts and circumstances of the case, this Court finds that there are no grounds made out to interfere with the directions of the learned MACT to make payment of the compensation @ 12% p.a.
19. Accordingly, in view of the foregoing discussion, the present appeal is partly allowed to the effect that the impugned judgmentcum-award dated 21.03.2016, where a total compensation of Rs.2,23,34,350/- was awarded to the claimant/wife of the deceased, is hereby set aside and instead, she is awarded a total compensation of
Rs. 49,29,860/-, which shall be payable to her with interest @ 12% per annum from the date of filing of the petition i.e. 07.04.2010 till the realisation. The amount of compensation be deposited with the learned MACT within three weeks from today, failing which, the Insurance Company shall be liable to pay penal interest @ 18% p.a. from the date of this judgment till the realisation.
20. All the interim orders shall stand vacated accordingly.
21. The appeal stands disposed of.
22. The pending application also stands disposed of.
DHARMESH SHARMA, J. FEBRUARY 29, 2024 sp/ck