The Oriental Insurance Co. Ltd. v. Purnima Rajesh Parikh

7.2. Mr. Ingale argued that there was a criminal case filed under This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th Section 304-A of the I.P.C. and 185 of the M.V. Act. However, in the said case accused (Respondent No.5) was acquitted from both the charges. He relied upon the judgment of Anil Chaudhry Vs. National Insurance Co. Ltd. passed in Civil Appeal No. 2351/2020 decided on 08.06.2020, wherein it was held that, merely by the fact that some smell of alcohol was found, consumption of alcohol could not be said to be attributable to the accident.

7.3. Mr.Ingale submitted that Dr.Rautela, the witness of insurance company has clearly admitted in evidence that the insurance policy on record (Exhibit-58) was a Comprehensive policy. The deceased was occupant of the subject car at the time of accident in question. Mr.Ingale also referred to the Judgement of National Insurance Company Ltd. Vs. Balakrishnan & Anr reported in (2013) 1 SCC 731. He also refereed to the Judgement of Supreme Court in New India Assurance Company Ltd. Vs. Shanti Bopanna & Ors. Reported in 2017 ACJ 2045. He referred to Para 7, which stated that the clause of the policy clearly covers the insured against all sums which the insured may become liable to pay in respect of: “(i) Death of or Bodily injury to any person including occupants of the vehicle. Para 8 further stated that the claim of the widow and the adopted This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th son is fully covered by the clause in the insurance contract. It rejected the contention that the deceased was not a third party because he was an employee sitting in the car. It is obvious from the circumstances that the deceased was indeed a third party, being neither the insurer nor the insured. Mr.Ingale also referred to the Judgement of Delhi High Court reported in (2011) ACJ 1415 Delhi, in the case of Yashpal Luthra and Anr. Vs. United India Insurance Company. The said Judgement recorded that Insurance companies are bound to pay the compensation in respect of liability towards occupants in the car, irrespective of the terms and conditions.

8.1. Mr. Mendon appearing for the original Claimant/Respondent No. 1 to 3 made his submissions and stated that the deceased was travelling at the wee hours, i.e. 3.15 a.m. along with Respondent No.5, from the common friend’s daughter’s birthday party and there was no question of he being on official duty at that time. Mr.Mendon also pointed out the cross–examination of D.W.No.1/Respondent No.5 clearly mentioned about the working timings of Respondent No.4 Company, which reads as under: “3….. My office timing at the time of accident were 10.00 a.m. This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th to 6.00 p.m. applicable to all staff members.”

8.2. Mr. Mendon also argued that there was a criminal case filed under Section 304-A of the I.P.C. and 185 of the M.V. Act. However, in the said case accused (Respondent No.5) was acquitted from both the charges only on technical grounds. Therefore, there was no negligence on his part as the deceased being/was merely an occupant of a vehicle. He relied upon Supreme Court Judgement of Bimla Devi & Ors. Vs. Himachal Road Trans. Corpn. & Ors. Reported in 2009 ACJ 1725. Mr. Mendon also argued that the learned M.A.C.T. Judge has wrongly blamed the applicants for delaying the matter when it can be seen from the Roznama of the M.A.C.T., that insurance company had made an application that the matter should not be taken up by the learned Judge who was hearing the matter. Mr. Mendon also further pointed out that after the issues were framed, the Insurance company with ulterior motive made an application for framing additional issue. Mr. Mendon added that therefore the delay was not on the part of claimant, but it was the insurance company who had delayed the proceedings. However, the learned Judge placing the burden on the claimant has reduced the period for which the interest was allotted to the claimant. Mr. Mendon also argued that the future This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th prospects, as referred to in the Judgment of Supreme Court in National Insurance Company Ltd. Vs. Balakrishnan and Anr. in 2012 SCC Online SC 939, was wrongly not granted by the learned M.A.C.T. Mr. Mendon stated that 30% of the income should have been added as future prospects. Mr. Mendon also stated that loss of consortium should be Rs.44,000/- per person, totaling to Rs.1,32,000/-. However, the trial judge only granted Rs.5,000/- per person which totals up to Rs.15,000/only. Mr. Mendon states that loss of asset should have been Rs.16,500/-, however, the lower Court has granted only Rs.10,000/-. Mr. Mendon also argued that funeral expenses should be Rs.16,500/-. But, the lower court has granted only 5,000/-.

8.3. Mr. Mendon also stated that reading Section 171 of the M. V. Act the interest shall be calculated from the date of the application. To support his submission he relied upon [i] Ramesh Chandra Vs. Randhir Singh reported in 1990 ACJ 777 (S.C.) [ii] Dr K.R. Tandon Vs. Om Prakash reported in 1999 ACJ 1299 [iii] Amresh Kumari Vs. Niranjan Lal Jagdish Parshad Jain reported in 2010(2) TAC 531(S.C.). This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th 8.[4] Mr. Mendon also stated that it was a comprehensive policy and hence the deceased was covered under the said policy though the deceased was not on his official duty at 03.15 a.m. in the morning. Mr.Mendon stated that cross objection was filed by Claimants (Respondent Nos. 1 to 3) challenging the impugned judgment and Order should be allowed along with interest at the rate of 7.[5] percent.

ANALYSIS and CONCLUSION:

9. I have exhaustively heard the advocates for Insurer, Insured and the Claimants. I have also considered the documents on record. The points for consideration are as under: 9.[1] Breach of Insurance Policy – Due to drunken driving by The plea of breach of Insurance Policy due to drunken driving was not taken before the M.A.C.T. which can be observed from the two Written Statements filed by the Appellants. It is a well settled law that no new plea can be taken in the Appellate proceeding for the first time. There was no specific evidence about the breath analyzer report or blood test This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th of Respondent No.5/ Driver immediately after the accident, done by the Police. Therefore it cannot be said that the Respondent No.5 was under influence of alcohol which has attributed to the accident in question. The Metropolitan Magistrate by Order dated 19th January 1996 in Criminal Case No. 758/P of 1993 has acquitted the Respondent No.5/the Driver, Accused for the offence punishable u/s. 304-A of I.P.C. and Section 185 of M.V. Act, 1988. In which it is specifically held that, no breath analyzer or blood test was conducted either by the Medical Officer or the Police. The Supreme Court in Anil Chaudhry (supra) – on page 5 held that, - “... Thus, the inference recorded by the Tribunal, in the absence of evidence that he was driving at a fast speed is based on surmises and conjunctures, merely by the fact that some smell of alcohol was found, in the facts of the case, consumption of some alcohol could not be said to be attributable to the accident. Moreover, there is no evidence that he was over-drunk or drove the vehicle rashly, in the facts of the instant case, as there was absolutely no rebuttal of the evidence adduced on behalf of the Appellant.” The judgment of Prashant (supra) referred by Appellant This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th concludes that the judgment in a criminal case of acquittal of a driver in an accident, is not binding on tribunal on M.V. act. Para no. 9 of the said judment reads as under: “9....... Insurer may escape liability only if he can make out a case of wilful infringement or violation of policy by insured, by cogent evidence,.......... Even otherwise, the insurer is liable to pay first and may then recover the amount paid as compensation from the owner / driver of the offending motor-vehicle as the case may be, in view of settled legal principle stated in the case of National Insurance Co. Vs. Swarna Singh (supra).” In the matter in hand, the Insurance Company was not able to prove breach of policy by driver of the car being drunken while driving. Similarly the judgment of Premlata Shukla (supra) doesn’t help Appellant. As in the present matter drunken driving is not proved. Hence, in the present case a mere submission of drunken driving taken for the first time in Appeal, without any pleadings in M.A.C.T. and no evidence adduced, according to me IT doesn’t prove the fact of drunken This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th driving by Respondent No.5, as alleged hence there is no breach of Insurance Policy. 9.[2] Whether Insurance Policy covers Employee travelling in car? Deceased Rajesh Parikh was an employee of Respondent No.4. The deceased was travelling at the wee hours, i.e. 3.15 a.m. along with Respondent No.5, from a common friend’s daughter’s birthday party. In the cross–examination of D.W.No.1/Respondent No.5 it is clearly mentioned about the working timings of Respondent No.4 Company, which is recorded as under: “3….. My office timing at the time of accident were 10.00 a.m. to 6.00 p.m. applicable to all staff members.” In such circumstances, in the first place according to me there is no question of deceased being on official duty at wee hours, i.e. 03.15 a.m. Secondly, the plea of deceased Rajesh Parikh travelling as employee of Respondent No.4 Company is not specifically pleaded in Written Statement by the Insurance company. The said plea is for the first time taken up in the First Appeal. According to me, unless and This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th until defence is not raised in the pleadings, the same cannot be raised for the first time in the First Appeal. In the Judgement of Shanti Bopanna (supra), Para 8 reads as under: “ We thus find that the claim of the widow and the adopted son is fully covered by the clause in the insurance contract, i.e., the policy and there is no scope for acceding to the submission made on behalf of the appellant-company that the claim is excepted by virtue of provisions of section 147(1) of the Act in this case. We, therefore, reject the contention made on behalf of the appellant that the deceased was not a third party because he was an employee sitting in the car. It is obvious from the circumstances that the deceased was indeed a third party being neither the insurer nor the insured.” [ emphasis supplied ] Therefore the Supreme Court in clear terms has clearly arrived at the finding that an employee sitting in the car is a third party since he is neither the insurer nor the insured. I also agree with the view taken up by Single Judge of Delhi High Court in Yashpal Luthra (supra) that in respect of occupants in car, irrespective of the terms and conditions contained in the This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th policy, the argument about limited liability under the policy is not valid. There is no dispute in the present matter that the policy in question is a Comprehensive policy. Therefore, even though the deceased was an employee of Respondent No.4 Company, in the facts mentioned above he is covered under the Insurance Policy. 9.[3] Whether liability of Insurance Company is limited under Insurance Policy? Insurance Policy No.121800/31/93/03080 (Exhibit 59) of the subject car (Toyota Corona), subscribed Premium Amount of Rs.7,981/which included Rs.50/- as U.T.P.P.D. (Unlimited Third Party Property Damages) and also included Rs.50/- towards Death Benefits of Rs.20,000/- for 5 passengers and Rs.15/- towards Legal Liability to be paid to driver as per Indian Motor Tariff. The policy is a comprehensive Policy. The subject car’s (Toyota Corona), sanctioned capacity was 5 passengers. The Insurance policy specifically mentioned Legal Liability towards Driver, and further more also included Death Benefits of Rs.20,000 for 5 passengers. Once the Policy states that driver has a separate benefit towards Legal Liability, at the most This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th Death Benefits could be given to 4 passengers. However, the Policy contained Death Benefits for 5 passengers. Further the terms of the Policy, Section II - clause 1(a) proviso, reads as under: Death of or bodily injury to any person including occupants carried in the motor car provided that such occupants are not carried for hire or reward but except so far as is necessary to meet the requirements of the Motor Vehicles Act, 1939 the Company shall not be liable where such death or injury arises out of and in the course of employment of such person by the insured. Therefore, the policy terms stated that an employee working with the Insured Company (owner of the vehicle) will not be covered under the insurance policy. Therefore, the terms mentioned in the Policy are very vague. In evidence when a question was asked to the witness of the Insurance Company, about the liability of the insurer, the said witness admitted that as per section 2, 1-A the company owes the liability. The said question reads as under:

1988. Section 304-A of I.P.C. reads as under: “ 304-A. Causing death by negligence.- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” The Respondent No.5/Accused was acquitted by the Metropolitan Magistrate Court on technical grounds as no breath analyser or blood test was done. The deceased was an occupant of the subject car, and there was no negligence on part of the deceased. The Claimants have specifically pleaded that there was negligence on part of the driver /Respondent No.5, as he was not able to control the This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th subject car, when a car from opposite direction suddenly came in front of him, he turned left and dashed the car on a tree. According to me, the car could not have gone to extreme left and dashed on the tree with such force if the driver/Respondent no. 5 had exercised reasonable care and caution. The burden was on Respondent no. 5 and on Insurance Company to prove that accident did not take place due to negligence to driver/Respondent no.5. The Respondent No.5, has stated in his examination in chief, Para No.2: “..... The insurance company issued a letter to me not to plead guilty in the criminal case pending before Magistrate Court. They appointed an Advocate Mr.S.M.Edwankar to defend me in the Tribunal..... Later on after some years, I was informed by the insurance company that I should appoint my own lawyer to defend myself”. Initially the Insurance Company/Appellant and Driver/Respondent No.5, had engaged a common lawyer, before the M.A.C.T. The Insurance Company according to Respondent No.5, had advised him by their letter not to plead guilty in the Criminal case before the Metropolitan Magistrate. There is no cross examination on the said examination in chief. In Bimla Devi (supra) Supreme Court held in Para No.15 as under: This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th

Appellant has relied upon Judgement of Chamundeswari (supra) and has submitted that the evidence before the Tribunal has to be given weightage over the F.IR. However the Appellant while arguing the ground of breach of policy due to drunken driving have referred to Section 304A. Therefore the Appellant has as per its convenience at sometimes referred to F.I.R. and have otherwise disputed the contents of F.I.R. In Minu Mehta (supra) and Reshma Kumari (supra) it was held that negligence of driver has to be proved. Taking into consideration the overall facts and circumstances, I conclude that the negligence on part of Respondent No.5 is proved. This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th 9.[5] Quantum of Compensation: The M.A.C.T, has arrived at a finding that the monthly salary of the deceased was Rs.12,500/-. Therefore the annual income is considered as Rs.1,50,000/-. A deduction of Rs.10,000/- under the head of income tax is done. A further deduction of as per the ratio laid down in Judgment of ⅓ Sarla Verma Vs. Delhi Transport Corporation reported in (2009) 6 SCC 121 is done, on the basis that the dependant of the deceased are his wife and two children; total three persons. Future prospects are not considered as the M.A.C.T. has arrived at a finding that the deceased was not a permanent employee. Multiplier of 13 is considered as the deceased was 47 years old at the time of accident. The Claimant had claimed a sum of Rs.48,45,000/- being salary per month of Rs.70,500/-, and the deceased was 47 years old when he died and his life expectancy was 70 years, and Rs.15,000 towards funeral expenses. The Claimants had produced on record a letter of the Respondent No.4 company, which stated deceased person’s salary as Rs.17,500/- (Exh.43). Another letter showed the salary of deceased as Rs.12,500/- (Exh.42). The M.A.C.T. has concluded that the salary of deceased was Rs.12,500/- per month. Smt.Anjali (supra) judgment confirms that I.T. Returns is a This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th statutory document on which reliance be placed, where available. In the present matter I.T. Returns have been filed on records and so also letters (Exh.42 and Exh.43) mentioning the salary of the deceased. I agree with the M.A.C.T.’s findings that the salary of the deceased was Rs.12,500/- per month at the time of accident. (a) The claim application before the M.A.C.T. is filed by the widow of the deceased and two sons of the deceased. In the Claim Application filed in the year 1993, paragraph No.19, mentions that, “The mother of the deceased, Damayantiben Shantilal Parikh, is alive, but the father, Shantilal Parikh, predeceased the deceased on 27th July 1974. The mother of the deceased is not residing with the Applicants and hence she has not been joined as party- Applicant to these proceedings. However, if she joins any time in future in these proceedings also claiming compensation, this Hon’ble Tribunal may decide the amount, if any, she is entitled to.” (b). Section 166(1) of the Motor Vehicles Act reads as under: “An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made a.. b.. c where death has resulted from the accident, by all or any This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th of the legal representatives of the deceased; or d..” Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application”.

(c) The mother of the deceased was later added as Respondent No.4 to the Claim Application. The Appellant/Insurance Company has admitted this fact in its written submissions. The deceased Rajesh Parikh, was 47 years old at the time of his death. His mother is a Class I legal heir and a dependant. The M.A.C.T., only considered legal heirs of the deceased viz. widow and two sons. According to me, the M.A.C.T., wrongly didn’t consider mother of the deceased as a legal heir, and allowed deduction at the rate of i.e. Rs.47,667/- out of ⅓ income of Rs.1,40,000/-. In judgment of Alpa Rajesh Shah (supra) it was held that since widow has not stated about the dependency of the father of the deceased, the father cannot be said to be dependent on deceased. In the matter in hand, the father of the deceased had already died and mother’s name and description is pleaded in the Claim Application. Her name was also later added as party respondent in claim Application. This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th According to me, since the legal heirs of the deceased were four viz. widow, two sons, and mother, the deduction should have been ¼, as per the ratio of judgment of Sarla Verma (supra). The Deduction on amount towards personal expenses should have been Rs.35,000/- as the yearly salary is Rs.1,40,000/-. Therefore, the claimants are entitled to receive Rs.1,05,000/-. M.A.C.T. had granted Rs.93,333/-. Therefore, additional Rs. 11,667/- is payable on account of loss of dependency. As the deceased was 47 years old, the multiplier of 13 for the age group of 46-50 in applicable. Therefore, for loss of dependency the additional amount payable will be Rs.11,667/- x 13 = Rs.1,51,671/-.

(d) The M.A.C.T. has held that the deceased can’t be granted compensation for future prospects, without giving any justification. It has come in evidence of the Managing Director of the employer that the deceased was doing well in the company and his salary was bound to increase. An employee if not on probation can’t be considered as temporary employee, to refuse him compensation for future prospects. What is not expressed is implied. On account of future prospects, as per the decision of Supreme Court in National Insurance Co. Ltd. Vs. Pranay Sethi & Ors., reported in This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th (2017) 16 SCC 680, I am granting 30%. As I have concluded net income after deduction as Rs.1,05,000/-. 30% of Rs.1,05,000/- is Rs.31,500/-. The said amount is to be multiplied by 13, therefore, the amount towards Future prospects comes to Rs.4,09,500/-. For loss of consortium suffered by Claimant No.1, I am granting Rs.10,000/- for loss suffered by Claimant No.2,[3] and mother of deceased, I am granting Rs.10,000/- each. I am granting Rs.10,000/towards funeral expenses. M.A.C.T. has granted Rs.5,000/- towards funeral expenses. Therefore, total compensation additionally payable would be Rs.5,91,171/-.

3 Addl. Consortium suffered by Claimant No.1 Rs.5,000/- 4 Addl. Fatherly love and affection suffered by Claimant No.2&3 Rs.10,000/-

6 Addl. Funeral expenses Rs.5,000/- - - - - - - - - - - - 9.[6] Interest: The M.A.C.T., has granted interest @ 6% for 9 years. The M.A.C.T. has not granted interest for 8 years during the pendency of proceedings, on the ground that “One does not know why the This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th Applicant No.1 tendered her evidence, after almost eight years, after framing of the additional issues”. Therefore, interest from the year 1999 to 2007, is not granted. The Learned Advocate for the claimants has shown me application dated 20th March 1999 filed by the Insurance company before the M.A.C.T. The said Application prayed for Transfer of the case to some other Member of the Tribunal. From the Roznama of the M.A.C.T., it can be noticed that thereafter on various occasions adjournments were granted as no one was present from the side of Insurance Company. So also adjournments were granted by consent of parties and also due to paucity of time, as the court was unable to take up the matter due to hearing of other part heard matters. In fact, the Insurance Company filed its Written Statement dated 4th April 1997 (Exhibit ‘6’) through Advocate S.M. Edwankar, and thereafter, filed another Written Statement dated 21/4/1997 (Exhibit ‘9’) through another Advocate A.K. Chaphekar. Subsequently, they appointed another Advocate Mr.Vidyarthi, to represent them. Considering the above facts the claimants can’t be blamed for the delay caused in hearing the claim application before the M.A.C.T. Hence, the claimants are also entitled for the interest for the eight year period (1999 to 2007). This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th M.V. Act, section 171 mentions about awarding interest when any Claim is allowed. Section171 reads as under: “Where any court or claim tribunal allows a claim for compensation made under this chapter, such court or Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid as such rate and from such date not earlier than the date of making the claim as it may specify in this behalf”. In the judgment of paragraph no.6 reads as under: “6. ….. So the addition to interest to the compensation, by judicial discretion, is sequential in the eye of law and no claim in that regard, in our view, specifically need be laid in so many words in the claim petition. The grant of interest, in our view, is not dependent on any pleading in that regard and can even be orally asked if the contingency arises. ….” In the Judgment of Dr. (Mrs.) K.R. Tandon (supra) the Supreme Court granted Interest @ 12% p.a. Paragraph No.3 of the said judgment reads as under:

10. Hence I pass the following Order: a) First Appeal No.1262 of 2012 is dismissed. b) Cross Objection (St.) No. 23393 of 2013 is partly allowed with following directions: (i ) Respondent Nos. 1 to 3, along with mother of deceased is entitled to sum of Rs.5,91,171/- along with interest @ 7% p.a. from the date of filing of claim Petition, i.e., This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th 23rd February 1993 till its realization from Appellant, Respondent Nos. 4 and 5, their liability shall be joint and several.

(ii) Respondent nos. 1 to 3, along with mother of deceased is entitled for interest @ 7% p.a. for 8 years on sum of Rs. 12,43,329/- Further, interest @ 1% p.a. on Rs.12,43,329/- for 9 years and interest @ 1% p.a. on Rs.12,43,329/- for 20 months, from Appellant, Respondent Nos. 4 and 5, their liability shall be joint and several.

(iii) Respondent Nos. 1 to 3, along with mother of deceased, have equal share in the amount of compensation and the interest accrued thereon. (RAJESH S. PATIL, J.) This Judgment is corrected pursuant to the Speaking to the Minutes order dated 12th