Oriental Insurance Co Ltd v. Shanti & Ors.

8. Each of the aforesaid issues are dealt with in turn. (2017) 16 SCC 680 [hereinafter, “Pranay Sethi”].

A. CONTRIBUTORY NEGLIGENCE

9. The first question which requires consideration in this appeal is with regard to allegation of contributory negligence against the deceased. It may be noted in this connection that the driver of the motorcycle – Mr. Sachin Kumar Gupta, gave evidence before the Tribunal as PW-2. In his cross-examination, he stated as follows: “I am in a possession of D/L or Motorcycle. Copy of the same is Ex. PW2/R3/A. The offending traulla had come from behind. I was driving my motorcycle on the left side of the road and I had to go straight. I will not be able to as to which portion of the traulla had hit the motorcycle. The driver of the traulla has absconding after leaving the traulla behind after the accident. I as well as deceased were wearing helmets at the time of accident. It is wrong to suggest that no such accident had taken place with the vehicle No. HR-55-A-7015. It is wrong to suggest that that I am deposing falsely to favour the petitioner. I have wrong mentioned in my affidavit that traulla came from the opposite side. It actually came from behind. It is wrong to suggest that I am deposing falsely.”2

10. Even assuming that a case of contributory negligence in respect of the death of the pillion rider can be made out on the basis of intoxication of the driver of the motorcycle, it is evident from the above that no such allegation was put to the driver of the motorcycle at all. Further, there was also no evidence with regard tothe Blood Alcohol Content of the motorcycle driver or the deceased, on the basis of which such an allegation could have been established. It also does not appear from the impugned award that any such plea was taken before the Tribunal either.

11. The contention with respect to contributory negligence is therefore rejected. Emphasis supplied.

B. LOSS OF DEPENDENCY

12. Turning now to quantum of compensation, first on account of loss of dependency.The calculation of the Tribunal was based on the following variables: S.No. Heads Awarded by Tribunal

1. Monthly income of the deceased Rs. 10,000/-

2. Future prospects 50%

3. Deduction for personal expenses 50%

4. Multiplier 13 TOTAL Rs. 11,70,000/-

13. The deceased was working as a Project Manager in Unity Power & Security Technologies Pvt. Ltd.,with a salary of Rs.10,000/- per month. This was established before the Tribunal, by the evidence of a representative of the employer – Mr. Suresh Kumar Gupta, Accounts Manager [PW-3]. This aspect is not disputed.

14. As the deceased was a bachelor, his mother was taken as the only dependent, and 50% of his salary was deducted towards personal and living expenses. This aspect is also undisputed, and is in line with thejudgment of the Supreme Court in Sarla Verma& Ors. v. Delhi Transport Corporation & Anr.3. (2009) 6 SCC 121 [hereinafter, “Sarla Verma”], paragraphs 31 and 32.

15. As far as future prospectsare concerned, the Constitution Bench judgment in Pranay Sethi lays down that, for a person on a fixed salary under the age of 40 years, the addition of future prospects should be at the rate of 40%4. This position is accepted by Mr. Parashar. The Tribunal’s award forfuture prospectsat 50% is therefore modified to 40%.

16. This brings us to the claimants’ submission with respect to the appropriate multiplier. The Tribunal has applied the multiplier of 13, noting that the mother of the deceased was 47 years old, and the father of the deceased was 46 years old, as on 01.01.2007. However, it is clear from the judgment in Pranay Sethi that the applicable multiplier is not to be determined on the basis of the dependents, but on the basis of the age of the deceased, at the time of the accident[5].

17. The deceased was only 29 years old at the time of the accident and the applicable multiplier, in accordance with the judgment in Sarla Verma, would therefore be 176. The award ismodified on this account also.

18. As a result of the above discussion, the award on account of loss of dependency ought to have been computed as follows: S.No. Heads Amount

1. Monthly income of the deceased [A] Rs. 10,000/-

2. ADD: future prospects [B] 40%

3. Monthly Income of the deceased (including future prospects) Rs. 14,000/- Paragraph 59.4. Paragraph 59.7. Paragraph 42. [A+B = C]

4. MINUS: personal expenses [D] 50%

5. Monthly loss of dependency [C – D = E] Rs. 7,000/-

6. Annual loss of dependency [E x 12 = F] Rs. 84,000/-

7. Multiplier [G] 17 Total loss of dependency [F x G] Rs. 14,28,000/-

19. The award on loss of dependency would therefore require enhancement from Rs.11,70,000/- to Rs. 14,28,000/-. C.NON-PECUNIARY DAMAGES

20. The next question of quantum relates to non-pecuniary damages. The Tribunal has awarded the following sums in this regard: S.No. Heads Awarded by the Tribunal 1 Funeral expenses Rs.25,000/-

3. Loss of love and affection Rs.25,000/- TOTAL Rs. 60,000/-

21. In Pranay Sethi, the Supreme Court has recognised three grounds of non-pecuniary damages in such cases – loss of consortium, funeral expenses and loss of estate. The quantum has also been laid down at Rs.40,000/-, Rs.15,000/- and Rs.15,000/- respectively[7]. In view thereof, the compensation under funeral expenses and loss of estate is revised, and Paragraph 59.8. fixed at Rs. 15,000/- each, in place of the earlier amounts of Rs. 25,000/for funeral expenses and Rs. 10,000/- for loss of estate.

22. As far as loss of consortium is concerned, the judgments in Magma General Insurance Company Limited v. Nanu Ram Alias Chuhru Ram and Ors.[8] and United India Insurance Company Limited v. Satinder Kaur alias Satwinder Kaur & Ors.[9] lay down three categories of entitled claimants being the spouse, parents and children of a deceased victim. The judgment of the Supreme Court in National India Assurance Company Limited v. Somwati10 clearly indicates that each entitled claimant is to be granted loss of consortium of Rs.40,000/-. In the present case, only the parents of the deceased were entitled to compensation under this head. Compensation is therefore awarded at Rs.80,000/- for loss of consortium.

23. Compensation for loss of love and affectionhas been awarded by the Tribunal at Rs. 25,000/-. The Supreme Court, in Satinder Kaur11, has however made it clear, that no amount is to be awarded on this head separately, as this head is subsumed under loss of consortium. The award under this head is, therefore, deleted.

24. Consequently, non-pecuniary damages are re-assessed as follows: S.No. Heads Awarded by this Court

1. Loss of consortium Rs.80,000/-

2. Loss to estate Rs.15,000/-

3. Funeral expenses Rs.15,000/-

(2021) 11 SCC 780 [hereinafter, “Satinder Kaur”].

4. Loss of love and affection Deleted TOTAL Rs. 1,10,000/-

25. The total non-pecuniary damages thereforerequires enhancement from Rs.60,000/- to Rs.1,10,000/-.

D. MODIFICATION OF AWARD

26. As a result of the above discussion, the award of the Tribunal therefore requires modification to the following extent: Sr. No. Heads Awarded by the Tribunal Awarded by the Court Difference

1. Loss of dependency Rs. 11,70,000/- Rs. 14,28,000/- (+) Rs. 2,58,000/-

2. Funeral Charges Rs.25,000/- Rs.15,000/- (-)Rs.10,000/-

3. Loss of Estate Rs.10,000/- Rs.15,000/- (+)Rs.5,000/-

4. Loss of consortium NIL Rs. 80,000/- (+)Rs. 80,000/-

5. Loss of love and affection Rs. 25,000/- DELETED (-)Rs. 25,000/- TOTAL Rs. 12,30,000/- Rs. 15,38,000/- (+) Rs. 3,08,000/-

E. GRANT OFENHANCEMENT WHERE NO CROSS-APPEAL HAS BEEN FILED

BY THE CLAIMANTS

27. The aforesaid re-computation gives rise to a further issue, which is, whether the award passed by the Tribunal can be enhanced on an appeal by the insurance company, when the claimants have not filedany crossobjection or cross appeal.

28. This question came up for consideration before a two Judge Bench of the Supreme Courtin Ranjana Prakash& Ors. v. Divisional Manager &Anr.12 wherein the Court held as follows: “8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by the owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation.”13

29. However, a laterorder of a three-Judge Bench of the Supreme Court in Surekha & Ors. v. Santosh & Ors.14, reads as follows:

(2011) 14 SCC 639 [hereinafter, “Ranjana Prakash”]. (2021) 16 SCC 467 [hereinafter, “Surekha”]. effect that the compensation amount payable to the appellants is determined at Rs 49,85,376 (Rupees forty-nine lakhs eighty-five thousand three hundred seventy-six only), with interest thereon as awarded by the High Court.

4. The appeal is allowed in the above terms. Pending applications, if any, stand disposed of.”15

30. While the aforesaid order does not refer to Ranjana Prakash, the appeal therein arose from a judgment of the Bombay High Court in Shriram General Insurance Company Limited v. Surekha & Ors.16. In the said judgment, the Bombay High Court found that the compensation payable to the claimants required enhancement, but declined such relief in the absence of a cross-objection or cross-appeal, relying onRanjana Prakash. It is thus evident thatRanjana Prakash, was expressly considered by the Bombay High Court in the judgment, which was under challenge before the Supreme Court in Surekha. The three-Judge Bench of the Supreme Courtnevertheless reversed the view taken by the High Court, which in turn was based upon Ranjana Prakash.

31. In these circumstances, I am of the view that the judgment in Surekha now holds the field, and this Court is entitled to award just and reasonable compensation to the claimant, by ordering enhancement of the award, even in the absence of a cross-objection or cross-appeal.

32. This view is further strengthened by the principle that a Court is required to grant just and fair compensation to the victim of road accident, unrestrained by strict rules of pleadings and evidence, established by a judgment of the Supreme Court in Nagappa v.

33. I am fortified in this view by several judgments which rely upon the Supreme Court’s order in Surekha, including by this Court in The New India Assurance Co. Ltd. v. Ali Sher Khan & Ors.18, by Rajasthan High Court in United India Insurance Co. Ltd. v. Moti Lal19, by the Bombay High Court in United India Insurance Co. Ltd. v. Rukmini Deepak20, and by theAndhra Pradesh High Court in National Insurance Co. Ltd. v. Nakkala Seshaiah21.

34. I, therefore, modify the impugned award by enhancing the total compensation payable by the Insurance Company to the claimants from Rs. 12,30,000/- to Rs. 15,38,000/-. The Tribunal’s award, therefore, stands enhanced by Rs. 3,08,000/-.

F. RECOVERY RIGHTS

35. The only remaining contention is with regard tothe Tribunal not granting any recovery rights to the Insurance Company. As far as this aspect is concerned, it may be noted that the driver and owner of the offending vehicle are impleaded in this appeal as respondent Nos. 4 and 5 respectively, and were duly served, as recorded in the order of the appearance on their behalf on the said date, but has not appeared since.

36. The question of whether the vehicle had the requisite permit and whether the driver had the requisite license was specifically addressed in the joint written statement filed by them before the Tribunal, as follows:

“7. That the Respondent no. 2 is under no obligation to pay compensation to the applicants as the respondent no. 1 was having a valid driving license at the time of alleged incidence. The Driving license of the respondent no.1 bears no. 30599/TV/Z/2008 issued by Government of Nagaland on 23.01.2008 and was valid at the time of accident which was renewed from time to time. The copy of the driving license of the respondent no.1 is annexed herewith as Annexure - R[1].

8. The alleged offending vehicle has valid the national permit from 06.09.2007 to 03.09.2012, fitness certificate upto 06 September 2008 and valid Insurance policy is insured with The Oriental Insurance Company Limited under Policy no. 271900/31/2008/2301 and the same was valid from 08.09.2007 to midnight of 07.09.2008. In case it is held that the said accident was caused by the said vehicle no. HR 55 A 7015, the respondent no. 3 i.e. Insurer of the said trolly is responsible for the compensation, if any. The copy of national permit is appended herewith as Annexure - R[2], fitness certificate as Annexure - R[3] and Insurance Policy as Annexure - R[4] respectively.”22

37. The Tribunal found that the Insurance Company did not attempt any verification of these documents, and could therefore not maintain a pleawith regard to absence of a permit and a driver’s license. I, therefore,find no reason to interfere with this reasoning in appeal.

G. APPORTIONMENT AND DISBURSEMENT

38. By order dated 04.10.2013, the Insurance Company was directed to deposit the amount awarded by the Tribunal, alongwith up-to-date interest, before this Court,as a condition for stay of execution of the award, and 70% was to be released to the claimants in terms of the impugned award.

39. The enhanced amount, in terms of paragraph 34 above, now be deposited by the Insurance Company, alongwith interest at the rate awarded by the Tribunal, i.e. 7.5% per annum, from the date of the claim petition, with the Registrar General, within a period of eight weeks from today.

40. As far as disbursement of the amount is concerned, the Tribunal granted a fix sum of Rs.25,000/- to the brother of the deceased, who was also a claimant, Rs.4,00,000/- to the father, and the balance to the mother. As far as the parents are concerned, certain amountswere to be released forthwith and the balance were to be kept in fixed deposits for the period of two years for the father, and five years for the mother. These periods have also now lapsed. There is therefore no impediment to release the balance amount lying in this Court, and alsothe amount to be deposited by the Insurance Company in accordance with this judgment, to the parents. The ratio of apportionment between the parents, as directed by the Tribunal,was approximately 1/3rd to the father, and 2/3rd to the mother. Mr. Parashar submits that the same ratio may be maintained by this Court.

H. CONCLUSION

41. In view of the above, the appeal is disposed of with the following directions:

Rs.3,08,000/-, alongwith interest at the rate of 7.5% per annum from the date of filing of the petition before the Tribunal,be deposited by the Insurance Company with the Registrar General of this Court, within a period of eight weeks from today.

42. The statutory deposit may be released to the appellant upon compliance with paragraph 41A as mentioned above.

PRATEEK JALAN, J DECEMBER 11, 2025 ‘Bhupi’/AD/