ICICI Lombard General Insurance Co. Ltd vs Mankunwar And Ors

@JUDGMENT-JUDGMENT

P.R. Ramachandra Menon, CJ

This is an appeal preferred by the Insurer of the vehicle bearing Registration No. CG-15/A 9150, which got involved in a road traffic accident causing death of a person which led to the claim petition before the 3 rd Motor Accident Claims Tribunal, Ambikapur (for short 'the Tribunal') wherein liability to an accident of Rs. 23,11,475/- with interest as specified, has been mulcted upon the shoulders of the Appellant/Insurer.

Heard Shri P. Acharya, the learned counsel appearing on behalf of the Appellant as well as Shri Rakesh Pandey, the learned counsel appearing on behalf of the Respondent/Claimants. Despite completion of service of notice, neither the 6th Respondent-Driver nor the 7 th Respondent-Owner of the offending vehicle has turned up.

The sequence of events is as follows: On the ill-fated day, i.e. on 31.10.2010, the deceased by name Iliyas was proceeding on a motor- cycle alongwith his sister-in-law and his nephew. While so, when they reached the place of occurrence, the offending vehicle owned by the 7 th Respondent, driven by the 6th Respondent and insured by the Appellant, knocked them down causing fatal injuries leading to death of the deceased. This was sought to be compensated by filing a claim petition before the Tribunal by the widow, three minor children and father of the deceased. The claim was contested by the Respondents mainly on the quantum and negligence. The Appellant-Insurer contended that the accident was solely because of negligence on the part of the deceased rider of the motor-cycle. The Appellant also contended that at the relevant time, the 6 th Respondent- Driver of the offending truck was not having valid and effective driving licence and hence, there was violation of the statutory/policy conditions. On conclusion of the trial, the Tribunal, based on the materials brought on record, arrived at a finding that the accident was solely because of the negligence on the part of the driver of the offending truck. With regard to the quantum of compensation payable, the Tribunal found that the deceased was an employee of the South Eastern Coalfields Ltd. with a monthly income of Rs.16,577/-. Based on the age of the deceased, the multiplier was fixed as 17 and after deducting 1/3 rd towards the personal expenses, the compensation for loss of income was fixed as Rs. 22,54,475/-. Awarding such other amounts under permissible heads, the total compensation was fixed as Rs.23,11,475/-. Based on the finding rendered by the Tribunal that the Appellant-Insurer had not succeeded in establishing any breach of the policy conditions, the compensation was directed to be satisfied with interest at the rate of '6%' per annum from the date of petition till satisfaction, if deposited within two months, or else to pay interest at the rate of '9%' per annum, which forms the subject matter of challenge in this appeal.

The learned counsel for the Appellant points out that the accident was a result of 'head-on collision' and that at the time of the accident, the deceased-rider of the motor-cycle was on the wrong side of the road and hence, it was only because of the negligence on the part of the rider and not of the 6th Respondent-Driver of the offending truck. The learned counsel further submits that the Tribunal went wrong in not considering at least the contributory negligence of the deceased-rider and hence, the quantum of compensation requires to be scaled down. It is also the case of the Appellant that the fixation of the multiplicand is on the higher side as the wages of the deceased were not properly proved and further, the gross salary given was inclusive of the Overtime wages, Sunday wages etc. which were not liable to be reckoned.

Shri Rakesh Pandey, the learned counsel appearing for the Respondent-Claimants submits that the finding given by the Tribunal on negligence does not warrant any interference, as based on the materials brought on record. The learned counsel submits that the quantum of the award also is not liable to be reduced under any circumstance as it is based on the evidence adduced. The deceased was an employee of the South Eastern Coalfields Ltd., aged 26 years, and that the accident has made the life of the widow, three minor children and the father miserable. The learned counsel seeks to place reliance on the verdict passed by the Apex Court in Sudhir Kumar Rana v. Surinder Singh & Others; {AIR 2008 SC 2405, paragraph 8} and submits that there is no finding that the deceased rider of the motor-cycle was riding the two-wheeler rashly or negligently when the accident occurred on collision with the offending truck. The Apex Court, in the said case has held that, even in a case where the rider is not having a licence, that by itself is not sufficient to hold him guilty of contributory negligence, in the absence of any evidence to the contrary.

After hearing both the sides and also after going through the materials on record, we find that it was very much open for the parties to substantiate the rival contentions by adducing evidence. The Claimants have asserted their case and the relevant factual aspects have been substantiated with reference to the negligence on the part of the driver of the offending Truck and also as to the ingredients for fixing the quantum of compensation, whereas no such effort has been taken from the part of the Appellant, but for raising a bald contention disputing the negligence on the part of the driver of the vehicle insured by them and attributing negligence/contributory negligence on the part of the deceased-driver. This aspect has been specifically noted by the Tribunal in the award, and in particular, in paragraphs 20 and 21, which are reproduced below for convenience of reference:

"20. आवेदिकागण उपरोक्तानुसार 23,11,475/-रु0 क्षतिपूर्ति प्राप्त करने के अधिकारी हैं। अतः वाद प्रश्न क्र. 1 से 3 का निष्कर्ष ''हां'' में दिया जाता है। वाद का विषय क्र. 4 व 5 पर निष्कर्षः- 21. उपरोक्त दोनों वाद विषयों का निराकरण एक साथ किया जा रहा है। प्रकरण में अनावेदकगण की ओर से यह प्रतिरक्षा लिया गया है कि घटना दिनांक को इलियास नवशिक्षु मोटरसायकल चालक था। उसके पास कोई अनुज्ञप्ति नहीं थी परंतु इस तथ्य को प्रमाणित किये जाने हेतु बीमा कंपनी किसी भी साक्षी का कथन नहीं कराया है। जप्ती पत्रक प्र.पी 8 के अवलोकन से यह प्रकट है कि घटना तिथि को अनावेदक क्र. 2 के यान की पंजीयन, फिटनेस व बीमा मौजूद था। अनावेदक क्र. 1 व 2 ने यान की फिटनेस व अनुज्ञा पत्र की फोटो प्रति प्रकरण में पेश किया हुआ है। यान विधिवत क्षेत्रीय कार्यालय अंबिकापुर में बीमित थी व यान की अनुज्ञा दिनांक 25/7/2014 तथा यान की फिटनेस दिनांक 23/7/2011 तक मौजूद थी। अनावेदक क्र. 1 के पास घटना तिथि को वैध व प्रभावी अनुज्ञप्ति थी। इस प्रकार अनावेदक क्र. 1 व 2 द्वारा घटना तिथि को अपने यान को वैध व प्रभावी दस्तावेजांे के जरिये यान का परिचालन कर रहे थे। अतः वाद प्रश्न क्र. 4 व 5 निष्कर्ष क्रमशः ''सिद्ध नहीं'' व ''हां'' में किया जाता है। "

It is revealed from the pleadings and the evidence brought on record that the Appellant has not succeeded in establishing any negligence or contributory negligence on the part of the deceased-rider and hence the finding given by the Tribunal does not warrant any interference.

With regard to the quantum of compensation awarded, as pointed out already, it is brought on record that the deceased was an employee of the South Eastern Coalfields Ltd. and was drawing a sum of Rs. 16,577/- per month. This according to the Appellant is on the higher side as it is inclusive of the Overtime wages, Sunday wages etc. which contention has not been proved by them by adducing any satisfactory evidence. At the same time, it is to be noted that by virtue of the law declared by the Apex Court in Sarla Verma (Smt.) & Others v. Delhi Transport Corporation & Another; {(2009) 6 SCC 121}, referred to by the Tribunal in paragraph 19 and as held by the Constitution Bench of the Apex Court in National Insurance Company Ltd. v. Pranay Sethi; {(2017) 16 SCC 680} case, future prospects are also to be considered while fixing the multiplicand. Similarly, the amounts payable towards consortium can be claimed under different heads in view of the three different types of consortium i.e. spousal consortium, parental consortium and filial consortium, as explained in subsequent decision of the Apex Court in Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram; {(2018) 18 SCC 130}. The amount of compensation can be sought to be enhanced under these heads to the requisite extent; but no cross-appeal has been filed from the part of the Appellant. Even if it is possible to hold that the Tribunal may not be justified in reckoning the gross salary and ought to have made deductions to the extent it is permissible under the law, it is to be noted that the Tribunal has deducted '1/3 rd' towards personal expenses. Since the total number of dependents is more than 3, it actually should have been 1/4 th and as such, some hike is possible under this head as well. But since no cross has been filed by the Claimants and since the award passed by the Tribunal granting a total compensation of Rs. 23,11,475/ - is found as a 'just award', we do not intend to make any modifications under any head, effecting enhancement under some hands and reduction of such amounts under other possible heads. The challenge raised by the Appellant-Insurer against the award passed by the Tribunal is without any basis and in the said circumstance, we decline interference.

We note that the granting of 'penal interest' at the rate of 9% per annum (if the amount covered by the award with interest at the rate of 6% is not deposited within two month) is not based on any statutory provision or binding precedent. In the said circumstance, the liability fixed as per the award to pay 'penal interest', stands deleted.

When the appeal came up for consideration on 19.02.2015, interim stay was granted, subject to depositing a sum of Rs. 20 (Twenty) Lakhs before the Tribunal, which was ordered to be released to the claimants on furnishing security. In the said circumstance, the balance amount due with interest at the rate of 6% per annum as awarded by the Tribunal shall be deposited by the Appellant-Insurance Company before the Tribunal (after giving credit to the amount deposited, including the statutory deposit) with intimation to the Claimants, as expeditiously as possible at any rate within 'six weeks' from the date of receipt of a copy of this judgment.

The appeal stands disposed of accordingly.