Vimla Devi & Anr. v. Royal Sundaram All Ins Co Ltd & Anr.

1. This appeal impugns the award of compensation dated 21.04.2018 passed by the learned MACT in Suit No. 555/2016, primarily on the ground that it has erred in apportioning contributory negligence upon the deceased- Mr. Lakshman Singh, despite the fact that he was a pillion rider and not the one who was driving the two wheeler-scooty.

2. In its written statement, the insurer had contended that three persons were riding the scooty bearing registration No. UP-16-AY-9175, without 2019:DHC:6698 wearing helmets and that they were in an intoxicated state. The motor vehicular accident occurred at about 11:15 pm on 12.12.2015 when a Maruti Swift bearing registration No. DL 8CU 5769, which was being driven by respondent no.2/driver in a rash and negligent manner, hit the scooterist with great force. The driver of the Maruti Swift car too, had smell of alcohol in his breath. It is argued that in effect, the motor accident occurred because of the rash and negligent driving of both the vehicles. However, there is nothing on record to show that the deceased and the other pillion rider were responsible or contributed to the accident in any way. The contributory negligence could only be apportioned if any negligence on the part of the scooterist was established.

3. The rider of the scooty- Mr. Surjan Singh and respondent no.2/driver of the offending vehicle were the persons concerned for propelling their respective motor vehicles on the road and neither of them could control their vehicles. It is nobody’s case that at the time of the accident, the deceased was harassing, poking, troubling, disturbing or distracting the scooterist, which led to it crashing into the offending vehicle. Therefore, apportionment of contributory negligence upon the deceased would be unjustified.

4. The learned counsel for the respondents submits that the deceased fully knew that the mounting of three persons on a moving scooty was impermissible under motor traffic rules. The accident occurred in the middle of the road. The pillion riders were not wearing helmets, therefore, there appears to be contributory negligence. The Court is of the view that the aforesaid argument is untenable because not wearing a helmet could at best be a traffic offence and not necessarily be regarded as contributing to the motor accident itself. After an accident occurs, its consequence depends upon the impact. In the present case, the two vehicles crashed into each other in a ‘head on collision’. The contribution of the pillion rider is not made out from the nature of the accident. Surely, the oncoming offending motor vehicle was being driven in a rash and negligent manner. In no circumstance, the deceased-pillion rider could be said to have contributed to the said accident. The deceased was the first pillion rider sitting immediately behind the scooterist. It is the second pillion rider who could well have misbalanced because he was sitting on the edge of the rear seat, therefore, the one pillion sandwiched between the other two riders would be the most securely seated, yet he died in the unfortunate accident. The pillion was not in control of the scooty. Hence, no case is made out for apportionment of contributory negligence upon the deceased. Accordingly, the impugned order is set aside in this regard.

5. The appellants/claimants are also entitled to compensation towards ‘loss of love and affection’ and ‘loss of consortium’ @ Rs. 40,000/- and Rs. 50,000/- each, in terms of the dicta of the Supreme Court in Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors., 2018 SCC OnLine SC 1546. The same is granted to them.

6. Since the deceased was in private employment and under the age of 40 years, therefore, he is entitled to and is granted an addition of 40% towards ‘loss of future prospects’ instead of 50%. The order stands modified accordingly.

7. The amount payable to the appellants/claimants shall be: S.No. Particulars Amount

1. Loss of Dependency [Rs. 16,200/- (monthly income of the deceased) x 12 (months) x 18 (multiplier) x 50/100 (50% deduction towards personal expenses) x 140/100 (loss of future prospects)] Rs. 24,49,440/-

2. Loss of love and affection [Rs. 50,000 x 2 (claimants)] Rs. 1,00,000/-

3. Loss of consortium [Rs. 40,000 x 2 (claimants)] Rs. 80,000/-

4. Loss of Estate Rs. 15,000/-

5. Funeral Expenses Rs. 15,000/- TOTAL Rs. 26,59,440/-

8. Let the aforesaid amount, alongwith interest @9% from the date of filing of the claim petition till its realization, be deposited before the learned Tribunal, within three weeks from the date of receipt of copy of this order, to be released to the beneficiaries of the Award, in terms of the scheme of disbursement specified therein.

9. The appeal is allowed and disposed-off in the above terms.

NAJMI WAZIRI, J DECEMBER 05, 2019 kb