United India Insurance Co Ltd v. Seema Khurana & Ors.

1. Both these appeals i.e. MAC APP No. 974/2015 filed by the insurance company and the cross-objection thereto filed by the claimant, in MAC APP. No. 370/2017, impugn the Award of Compensation dated 05.11.2015 passed by the learned MACT in MACT Case No. 184/2014. 2019:DHC:4675 The appellant- insurance company has impugned it on the ground that without discussing rashness and negligence of the driver of the offending vehicle the fixation of liability on the appellant-insurer is erroneous and without basis.

2. It was the case of the claimants that the deceased expired on account of a motor vehicular accident on 11.05.2008. An FIR was registered apropos the accident and the same was taken into consideration by the learned Tribunal, the issue of negligence of the driver has been discussed as under: “(1). In brief the relevant facts of the case as mentioned in the petition are that one Shri Rajesh Khurana S/o Late Shri K.K. Khurana expired due to injuries suffered in road traffic accident on 11.05.2008 at about 9:30 PM at Rotory Club, Nehru Nagar, Ghaziabad, (U.P.) due to rash and negligent driving of the offending vehicle i.e. Indica car bearing registration no. UP-16F-7472 which was being driven by respondent no: 1 Ram Kumar Sharma on the said date, place and time in said manner. The offending vehicle was insured on the date of accident. (2). The respondents have filed the written statements. In the WS of R-1 it is mentioned that the offending vehicle was insured on the date of accident and R-1 was having genuine and valid driving licence at that time. In WS of R- 2 it is admitted that the offending vehicle was insured in the name of R-1 for the period 20.8.2007 to 19.08.2008. The date of accident is 11.5.2008. The FIR No. 338/2008, U/s 279/338/304A IPC was registered at PS Singhani Gate, Ghaziabad. Father of deceased has already expired earlier before filing the petition. Mother of deceased, widow of deceased and sons of deceased are the petitioners being LRs. In the petition it is mentioned that the deceased was self employed and was doing business and he was 39 years old at the time of accident and earning Rs.,2,50,000/- per annum. (3). On the basis of pleadings the following issues were framed by my Ld. Predecessor on 21.12.2010:-

1. Whether deceased died in road accident while going on scooter on 11.05.08 at about 9:30 PM at Rotory Club, Nehru Nagar, Ghaziabad caused due to rash & negligent driving of Indica car bearing no. UP-16F-7472 being driven by R1? OPP

2. Whether petitioners are entitled for any compensation and if so, to what amount and from whom?

3. Relief. (4). I have already heard final arguments and perused the record. Now I shall give my issue-wise findings which are as under:- (5). Issue No. 1:- The onus to prove this issue was upon the petitioner. Petitioner has examined PW-1 Smt. Seema Khurana who has filed her evidence by way of affidavit which is Ex. PW-1/A. She is not the eye witness of the accident. PW-2 Shri Rajesh Thakur is the eye witness of the accident who has filed his affidavit Ex. PW-2/A. He was also cross examined. Nothing material has come out in his cross examination to demolish the case of the petitioners. He has supported the case of the petitioners. The petitioners have also filed the certified copy of criminal case record including chargesheet. In the cases of motor accident, the aspect of negligence is to be adjudicated on the basis of preponderance of probabilities and the strict proof of negligence is not required. From the overall facts and circumstances and evidence on record it is clear that the accident in question occurred due to rash and negligent driving of the offending vehicle by R-1 on the relevant date, place and time which caused fatal injuries to deceased Rajesh Khurana. The present issue is disposed off accordingly in favour of petitioners and against respondents.” (Emphasis supplied)

3. According to the learned counsel for the appellant-insurance company, the reasoning is not based on the specifics of the case, therefore, it is untenable; that a Court of First Instance i.e. the learned Tribunal ought to have given a proper reasoning apropos the finding of fault with the manner of driving of the offending vehicle. The Court, however, would note that the claim petition was not based on DAR. The facts of the case pleaded were as under:

6. Quite clearly, the claimants were able to establish the fact that there was an eyewitness who had clearly seen the accident from close quarters and sufficient details of the accident had been recorded in his testimony. The eyewitness was nearly 20 to 30 feet from the accident; he saw everything right in front of himself. He accompanied the deceased to the hospital alongwith Mr. Sanjiv Mittal and got a call from the police the next day. His statement was recorded by the police. He denied the suggestion of the insurer that he was not a witness to the accident. He had identified the offending vehicle as Indica Car bearing no. UP 16 F 7472 which came from the wrong side of the road at a high speed and was being driven in a rash and negligent manner and hit the scooter at Rotory Club, Nehru Nagar, Ghaziabad, (U.P.) and grievously injured the deceased, who was moved to Yashoda Hospital in rickshaw and succumbed to his injures the next day. The testimony of the eyewitness remains unshaken and was rightly believed and taken into consideration in awarding the compensation. Therefore, the insurer’s contention in this regard is untenable and the Court finds no reason to interfere with the impugned order.

7. The learned counsel for the appellant- insurance company submits that the deceased was 39 years of age and was engaged in a private business, therefore, he should get compensation towards ‘loss of future prospects’ only at 40% and not at 50% as awarded in the impugned order. His contention is correct in view of the dicta of the Supreme Court in National Insurance Co. Ltd. vs. Pranay Sethi & Ors., (2017) 16 SCC 680. Accordingly, the compensation towards ‘loss of future prospects’ is reduced from 50% to 40%.

8. The claimants seek enhancement of the compensation on the ground that the ITR for Assessment Year 2008-09 ought to have been considered and not only the ITRs of AYs 2006-07 and 2007-08. It is not in dispute that the ITR of AY 2008-09 was filed on 27.08.2008, that is, after five months of demise of the deceased. The claimants were not able to support the ITR with any kind of records, ledger books, etc., nor was the claimant PW-1 able to support the enhanced source of income for the AY 2008-09. The Income Tax Officer-PW-3, was unable to corroborate the ITR of 2008- 09, because it being more than six years old, had been destroyed as per rules. The ITR of AY 2008-09, not having been proven, was not taken into consideration.

9. The Court would note that the Trial Court had considered the ITR of AY 2006-07 only because in the subsequent ITR there was no bifurcation of gross total income. The ITR of AY 2006-07 was considered as it had bifurcation of income from business and income from other sources, these two were taken into consideration, while the income from house property was disregarded, as the same would continue ever after the demise of the deceased.

10. In the circumstances, except for reduction of ‘loss of future prospects’ from 50% to 40%, no other interference is warranted apropos the ‘loss of dependency’. However, with regard to non-pecuniary heads, the Court would note that compensation towards ‘loss of consortium’ has been awarded at Rs. 1,00,000/- and an equal amount for ‘loss of care and guidance’ has been awarded for the children. A sum of Rs. 25,000/- has been awarded towards ‘funeral expenses’ but nothing towards ‘loss of estate’. These aforesaid amounts need to be revised in terms of the dicta of the Supreme Court in Magma General Insurance Co. Ltd. vs. Nanu Ram @ Chuhru Ram & Ors., 2018 SCC OnLine SC 1546 and Pranay Sethi (Supra).

11. The amounts payable in terms of Magma (Supra) towards ‘loss of consortium’ for both filial and parental for each of the claimants is Rs. 40,000/- and for ‘loss of love and affection’ is Rs. 50,000/- per claimant. In terms of Pranay Sethi (Supra), Rs. 15,000/- is payable towards ‘funeral expenses’ and ‘loss of estate’ under each head. Therefore, the amount payable would be as under: S.No. Particulars Amount