Shriram Gen. Insurance Co. Ltd. v. Sh. Surender Sethi & Ors.

1. Exemption allowed, subject to all just exceptions.

2. The application stands disposed of. CM APPL. 21309/2023 -Delay 52 days.

3. This is an application filed by the appellant seeking condonation of delay of 52 days in filing the appeal.

4. The application is, for the reasons stated therein, allowed and the delay of 52 days in filing the appeal is condoned.

5. The application stands disposed of. MAC.APP. 219/2023

6. The present appeal preferred by the insurer under Section 173 of the Motor Vehicles Act, 1988 seeks to assail the award dated 18.11.2022 passed by the learned Motor Accident Claim Tribunal.

7. At the outset, it may be noted that the appeal is premised on following five grounds: (i). The finding of the learned Tribunal that there was no negligence on the part of the driver of the motorcycle on which the deceased was a pillion rider is perverse and liable to be set aside. (ii). The income of the deceased was wrongly taken by the learned Tribunal as Rs.5,15,000/- per annum. (iii). The learned Tribunal erred in granting 50% enhancement towards loss of future prospects of the deceased. (iv). The grant of interest @9% p.a. on compensation was highly exorbitant. (v). The learned Tribunal erred in granting Rs.88,000/towards loss of consortium without appreciating the fact that the deceased was unmarried.

8. Learned counsel for the appellant submits that he does not press his plea regarding the amount awarded towards loss of consortium. He however submits that once it was an admitted position that three persons, including the deceased, were riding on the motorcycle which met with the accident with the insured vehicle, it was evident that the motorcycle was being driven in breach of traffic regulations. He contends that it is the motorcycle which was being driven rashly and negligently and therefore the Tribunal erred in holding that the insured car was being driven negligently.

9. Having considered this submission of the learned counsel for the appellant, I am of the considered view that merely because three persons were riding on the motorcycle, it cannot be presumed that there was negligence on the part of the driver of the motorcycle or that there was no negligence on the part of the driver of the insured vehicle. While it is correct that the motorcycle was being driven in violation of traffic regulations, this alone cannot be a ground to hold that there was no negligence on the part of the driver of the insured vehicle. Furthermore, it is an admitted position that the appellant neither led any evidence to show negligence on the part of the driver of the motorcycle nor was any question put to the witnesses of the claimants in this regard during cross-examination. In the light of the aforesaid, I find no reason to interfere with the finding of the learned Tribunal that there was negligence on the part of the driver of the offending vehicle.

10. Taking into account that the accident took place in 2019 and the claimants are yet to receive any compensation, I also do not find any merit in the appellant’s plea that the grant of interest @ 9% p.a. in the facts of the present case, was exorbitant. However, the appellant’s plea regarding the income of the deceased having been considered as Rs.5,15,000/- per annum and the grant of 50% enhancement towards future prospects needs to be examined by this Court.

11. Issue notice in the appeal confined to the aforesaid aspect regarding the quantum of compensation. Mr. Parashar accepts notice on behalf of respondent nos. 1 & 2 and prays for time to make submissions. Taking into account that no recovery rights have been granted in favour of the appellant, no notice is required to be issued to respondent no. 3.

12. List on 06.10.2023.

13. In the meanwhile, LCR be requisitioned and digitized before the next date. CM APPL. 21308/2023 -Stay.

14. This is an application preferred by the appellant seeking stay of the impugned award.

15. The application is disposed of by directing the appellant to deposit within four weeks, 75% of the awarded amount with the learned Tribunal with a further direction to the learned Tribunal to release the same in favour of the respondent nos. 1 & 2 as per the scheme of disbursal contained in the impugned award.