Nitin Yadav v. Oriental Insurance Company Limited

1. On 01.05.2012 at about 01:30 hours a collision took place between two motor vehicles in the area of,village Vhilcnawas, Police Station Agroha, District Hissar, Hafyana, they being car bearing temporary registration No.HR-99-LH-TEMP-9197 (hereinafter, the car) and tractor make KMT colour blue, HR-20K-2724 (hereinafter, the truck). The truck is stated to be owned by Satbir and Surender, sons of Ram Sarup, who were brought before the Motor Accident Claims Tribunal (Tribunal) as second respondents, it having been driven at the relevant point oftime by Ram Singh and being insured n against third party risk for the relevant period with Oriental Insurance L company being now the appellant in MAC APP.896/2016, 902/2016 and 903/2016(hereinafter as the insurer).

2. Three persons were travelling in the car including Rahul Yadav and Nitin Yadav, 25 years and 23 years old persons, who died as a result of the injuries suffered in the accident, another being Rajbir Yadav,26 years old,the latter suffering injuries in the process.

3. A police case was registered vide First Infonnation Report (FIR) No.91/2012 with the local police, in the wake of which a Detailed Accident Report(DAR)came to be submitted. In the wake of DAR, three claim petitions came before the court, they being MACP case Nos.599/2012/2014,600/2012/2014 and 601/2012/2014. The first ofthe said claim petition was instituted by Rajbir.Yadav for compensation for injuries suffered by him,the other two having been instituted by the legal heirs/dependents of the deceased Nitin Yadav and Rahul Yadav respectively.

4. The Tribunal had inquiry by consolidating all the three cases. Common evidence was led. The claim petitions were decided by common judgment rendered on 04.07.2016. In all the three cases, the question of negligence was considered and, on the basis of the evidence led, the Tribunal recorded finding that the collision took place due to negligence on the part ofthe,tractor driver.

5. For the injuries suffered by Rajbir Yadav on his claim petition compensation of Rs.79,480/- was awarded. In the case of claim on presented by his parents and minor sister, compensation of Rs.27,73,000/- was awarded while in the case ofclaim on account of death ofRahul Yadav,it having been presented by his widow,minor son and widowed mother, compensation of Rs.16,03,032/- was awarded. In all the three cases, the Tribunal added the element of interest@10% per annum from the date offiling ofthe petitions, i.e., 10.07.2012,fastening the liability on the insurer.

6. The insurance company by its three appeals has questioned the correctness of the finding recorded on the issue of negligence, its contention being that Rahul Yadav, the driver of the car, had also contributed to the cause of accident. The insurance company also assails the calculations of compensation in the two death cases and takes exception to the levy ofinterest@10% per annum. 7.. The claimants in the two death cases have also come up with their respective appeals, the appeal on behalf oflegal heirs ofRahul Yadav being MAC APT.266/2017 and the appeal in case of death of Nitin Yadav being MAC AFP.271/2017, each claiming enhanced compensation.

8. Arguments have been heard at length and the record has been perused.

ONNEGLIGENCE

9. The submission of the insurer on the issue of negligence is responsibility atthe door ofthe tractor driver.The evidence,supported by the corresponding police record,clearly shows that the tractor was wrongly parked on the wrong side without any caution sign. It was primarily on this countthat the car came to strike against it sometime after midnight. Neither the insurer nor the tractor owner or driver made any attemptto bring any evidence,to prove factsto the contrary. The said finding,therefore,does notcall for any interference.

COMPENSATIONIN CASE OFPEATHOFRAHUL YADA V

10. Deceased Rahul Yadav was 25 years old and had completed secondary school examination. As per the evidence ofhis wife(PW- 1), he had been in a private service as CCTV operator earning Rs.9,000/- per month. She sought to prove this fact on the basis of salary certificate Ex.PW-1/8. This, however, could not have been accepted and was rightly rejected as.no formal proof about such engagement was brought in. The evidence was also led by the testimony ofPW-4to the effectthat Rahul Yadav was son ofa former employee ofDelhi Police who had died during service,Rahul Yadav's candidature for appointment on compassionate grounds having been accepted and he being offered appointment but, subject to medical fitness. Before he could undergo medical examination or take up such appointment, unfortunately, he died in the accident. In these circumstances, the Tribunal did not accept the plea of the claimants that the earnings ofRahul Yadav on which loss ofdependency had to be worked out should be assumed on the basis of what would have -E been his income ifhe hadjoined service ofDelhi Police.The Tribunal instead went by minimum wages.

11. The claimants reiterate their arguments that the loss of dependency had to be worked out assuming the salary that Rahul Yadav would have drawn ifhe hadjoined the police services.

12. Having accorded serious consideration to the above aspect,this court is unable to accept the contention of the claimants. It is the actual loss of dependency which has to be compensated. The future income on the basis ofsuch candidature or aspiration for government service as mentioned above is in the realm of speculation. It was contingent upon further test as to fitness to be undergone. Therefore, such income cannot be treated as the income ofwhich there has been a loss.The approach ofthe Tribunal in this regard cannot be faulted.

13. In above view,the compensation awarded by the Tribunal does not call for any modification.

COMPENSATIONIN CASE OFPEATHOFNITIN YAPA R