Reliance General Insurance Co. Ltd v. Reena & Ors.

1. This appealhas been filed under Section 173 oftheMotorVehicles Act, 1988 (“the Act”) assailing award dated 17.01.2015 by the Presiding Officer, MACT, Central District, Delhi in Suit No. 188/2010 titled as “Smt. Reena & Ors. v. ShriSandeep & Ors.”TheTribunal heldthattheclaimantswereentitled to Rs. 26,11,000/-withinterest@9% p.a. fromthedateoffilingtheclaim. The wife ofthedeceased, Reena washeld entitled to50%, andtheparents wereheld entitled to 25% each of the awarded amount. MAC.APP. 356/2015 2/11 Factual Background

2. RespondentNo. 1 is widow of Late Rajiv Singh while respondentno. 2 and 3 are mother and father of deceased Rajiv Singh, respectively. The deceased succumbed to injuries sustained by him in a road accident.

3. On 02.12.2009, at about 9:30 P.M. the deceased, Rajiv Singh, was travellingalongwith oneSandeep, thedriverofthe vehicle, which was loaded with vegetables, bearing registration No. DL 1 LG 8898 (Tata 407). Their vehicle met with an accident near Maan Dhaba, Murthal, District Sonepat, Haryana and Rajiv Singh was rushed to the local government hospital. From there he was moved to Lok Nayak Jai Prakash Hospital Delhi, where he succumbed to his injuries on 03.12.2009. The accident was attributed to rash and negligent driving of Sandeep.

4. The MACT framed the following issues: “(i) Whether the deceased Sh. Rajeev Singh had died due to the injuries sustained by him in an accident which took place on 02.12.2009 because of rash and negligent driving of vehicle bearing registration No. DL 1 LG 8898 by respondent No. 1?

(ii) Whether the petitioners are entitled to any compensation ifso, to what amount and from whom?

(iii) Relief.”

5. The MACT found thatas per thetestimonies ofPW-1 and thepetitioner (respondentNo. 1 herein) as well as therecord, that thedeceased sufferedfatal MAC.APP. 356/2015 3/11 injuries in the accident due to rash and negligent driving of the vehicle. As regards thecompensation for the LRs of thedeceased, theMACT calculated it on the basis of the following factors: S.No. Component of Compensation Amount

1. Loss of financial dependency (1,98,000 X 18 X 2/3) Rs. 23,76,000/-

2. Loss of Love and affection Rs. 1,00,000/-

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

4. Funeral Expenses Rs. 25,000/-

5. Loss of consortium to wife Rs. 1,00,000/- TOTAL Rs. 26,11,000/- Submissions by Counsel for the Appellant:

6. Counsel for the appellant/Insurance Company, based his contentions in support of the appeal on the following grounds: a. Firstly, that there is no material evidence on record to prove any rash and negligent driving on the part of the driver of the offending vehicle. Further, respondent no.1 failed to examine any eyewitness to prove any negligence on part of respondent no.4. There is only DD entry No.22 dated 03.12.2009 Ex. PW-6/A which does not indicate any negligence on part of respondent no.4. According to MAC.APP. 356/2015 4/11 appellant’scounsel, MACT erred in appreciatingtestimonies ofPW- 1, PW-5 and PW-6 and attestedcopies of criminalrecord produced, in reaching the conclusion that the deceased suffered fatal injuries due to negligent driving of the driver of the offending vehicle. As per him, negligence is required to beprovedas persection166ofthe Act. Reliance is placed on a judgment of this Court in New India Assurance Co. Ltd. v. Shashi Negi, 2016 SCC OnLine Del 3044. b. Secondly, it is contendedthatmonthly incomeofthedeceased has been wrongly assessed at Rs.11,000/-per monthdespitetherebeing no salary certificate or salary receipt on record. Reliance has also been placed on thebankstatementwhich showsvariationin amounts paid by the employer of the deceased. Therefore, minimum wages ought to have been applied instead of Rs.11,000/-. c. Thirdly, MACT erred in allowing50% futureprospectsto income of the deceased which ought not to have been more than 40%. This was contrary to the ratio as per decision of Hon’ble Supreme Court in National Insurance Co. Ltd. V. Pranay Sethi & Ors. (2017) 16 SCC 608. d. Fourthly, the counsel contended that theMACT wrongly granted non-pecuniarydamagesto thetuneofRs.2,35,000/-which oughtnot to havebeen morethan Rs.70,000/-in light ofthefindings in Pranay Sethi (supra). MAC.APP. 356/2015 5/11 e. Lastly, it is contended that the MACT erred in granting 9% per annum interest and states that as per the prevailing bank rate, it should have been 7% only. Submissions of Counsel for the Respondents:

7. In response, counsel for the respondents refuted the submissions made by counsel for the appellant submitting as under: a. Lack of an FIR was not detrimental to the case considering that when respondent no.4 came to know that the deceased had died, he himselfwent to PS MurthalDistrict Sonipatandgot DD.No.22 dated 03.12.2009(Ex. PW-6/A)recorded.However, hehad not mentioned the true facts about the accident in order to save himself. b. Two DD entries beingDD No.6andDD No.9 wererecorded, after admission of the deceased to the hospital and after his death respectively (Ex. PW-5/A & PW-5/B respectively). c. It is contended that as regards expenses incurred, Rs. 25,000/werespent on transportation ofthedeceased’sremains from Sonepat to Delhi and from Delhito Farukhabad, asalso otheramountsfor his treatment. d. The income of the deceased, at the time of his death was Rs.16,000/-per monthby way ofhis salary sincehe was workingas a Consignment Supervisor with M/s. Ganesh Transport Company, Narela, Delhi (on monthly salary of Rs. 11,000/-) and he was also earningRs.5000/-per monthby giving privatetuitions. Since there MAC.APP. 356/2015 6/11 was no receipt for privatetuitions, reliancewas placed on testimony of PW-2 Sanjeev Khatri, who deposed that deceased used to give privatetuitions,andhehimselfalsousedto payRs.3,000/-per month to thedeceased for tuitions ofthreechildren. As regards themonthly salary ofRs.11,000/-from M/S GaneshTransportCompany,Narela, Delhi, he relied upon the evidence produced by PW[4]. e. Reliancewas also placed on thestatement ofaccountfiled by PW- 4 (Ex. PW-4/1) and variation in the bank statement was due to the advance salary received by the deceased. f. No suggestion was put toclaimants todilutetheaspect ofmonthly salary. g. Respondentsareelderly parents andwidow ofdeceased and state they havereceived only 30% of theaward amounttill dateand pray that the appeal be rejected.

8. This Court has perusedtherecords and heardthecounsels for theparties. Pursuantto an assessmentofthe documentsand contentions, this Court is of the view that theappealby the InsuranceCompany does not merit consideration and is therefore dismissed for the following reasons: 8.[1] As regards the proof of rash and negligent driving, it is evident thatthetruck driver himselfhadmadea statementwhich was recorded as DD No.22 dated 03.12.2009. This was a casewherethe deceased was an occupantin a vehiclewhich was beingdriven rashly and negligently. The respondents contended that an FIR was not MAC.APP. 356/2015 7/11 registered considering the fact that the delinquent himself i.e. the driver of the truck, had not voluntarily admitted that he was driving in a rash andnegligent manner. TheDD entryrecordedthatthetruck driven by respondent no.4 collided in a stationery Santro Car, short of any other circumstance which would provide a reason for the accident. Thenegligence of thedriver ofa movingvehicle colliding with a vehicle that was stationery, would be evident. This fortifies the conclusion drawn by MACT that it was rash and negligent driving by the respondent no.4. 8.[2] Referencehas also madetoPW-5/A andPW-5/B(DD 6 and DD 9 respectively). These DDs were recorded at the stage of admission ofthe deceased in the hospitaland after his death. There is nothingon recordto suggest in theseDDs thattherewas anyother circumstance, or theinvolvementof any other vehicle, which would haveled to theaccident. The lack of an FIR therefore, would notbe fatalto thecaseoftherespondents. Moreover,thestory given by the respondent no.4 for burst tyre finds no corroboration in the investigation which ensued. 8.[3] MACT also took judicial note of the fact that in Uttar Pradeshin a largenumberofmotor vehicleaccidents, no formalFIRs are registered and therefore this could not offer a reason for not considering claim of the respondents. MAC.APP. 356/2015 8/11 8.[4] Further, thepostmortem reportdated03.12.2009advertsto injuries sustained by the deceased which led to his death following impact of the cargo vehicle he was in. 8.[5] The MACT relied upona decision of this court in National Insurance Co. Ltd. v. Pushpa Rana, 2007 SCC OnLine Del 1700 wherein it was held that: