Kanhiya Lal Duggal vs Manju Gupta & Ors

R.K.Gauba, J

Parveen Kumar was travelling in a Scorpio car bearing registration no.DL-3C-AH 3000 with Gurvinder Singh on 13.09.2007, it being driven by

Kanhiya Lal Duggal (appellant in MACA 640/2012) (hereinafter referred to as the “car driverâ€) who is also the owner of the car. The car came

to be involved in a collision at about 1.45 a.m. at T Point Junction on Ring Road, Bhairon Road, New Delhi with a truck bearing registration no.HR-

55A-6289 (the truck) driven by the respondent Shyam Singh. It (the car) was insured against third party risk for the relevant period with ICICI

Lombard General Insurance Co. Ltd. (“insurer of the carâ€) while the truck was insured against third party risk with National Insurance Company

Ltd. (“insurer of the truckâ€​), both companies being respondents in these appeals. Parveen Kumar died as a result of the injuries suffered.

Two accident claim cases were instituted, one (suit no.1666/2007), by the widow and the other members of the family dependent on Parveen

Kumar, they being appellants in MACA 320/2010, and, the other (suit no.1668/2007), by Gurvinder Sigh seeking compensation for injuries suffered by

him. Both the claim cases were clubbed by the tribunal and on the basis of the evidence led, decided by a common judgment dated 09.12.2009. The

tribunal concluded that the car driver was negligent in that it had jumped red traffic signal coming in the way of the truck. It also held the truck driver

negligent in that he could have avoided the accident by slowing down. The contributory negligence on the part of the drivers of both the vehicles was

apportioned in the ratio of 60:40 amongst the car driver and the truck driver.

In the claim on account of the death of Parveen Kumar, compensation in the total sum of Rs.10,92,000/- was awarded, it being the amount

calculated under the head of loss of dependency, on the basis of notional income of Rs.9,750/- calculated after factoring in the element of future

prospects of increase in income to the extent of 30% and making a deduction of one-third towards personal and living expenses invoking the multiplier

of 14.

The insurer of the car had raised a plea of breach of the terms and conditions of the insurance policy. It led evidence by examining Jai Singh (RW1)

to show that the car driver Kanhiya Lal Duggal (appellant in MACA 640/2012) was not holding a valid or effective driving licence. This plea was

accepted and, therefore, the insurer of the car was exonerated, the responsibility to pay having been fastened on Kanhiya Lal Duggal (appellant in

MACA 640/2012) to the extent of his liability.

The claimants in the death case, by their appeal (MACA 320/2010), seek enhancement of the compensation, pressing the said prayer on two

counts; one, that the tribunal ignored the fact that there were five claimants on which account deduction towards personal and living expenses should

have been to the extent of one-fourth and, second, that the award is deficient since no compensation under the non-pecuniary heads of damages has

been added.

The car driver (who is also the owner), Kanhiya Lal Duggal (appellant in MACA 640/2012) is aggrieved with the insurer having been relieved

pointing out that the evidence led by the latter concerned a different licence, insisting that he was holding a valid and effective driving licence, copy

whereof has been submitted as Annexure P-8 (page 55 of the paper book in MACA 640/2012).

The contentions of the claimants in the death case deserve to be accepted. Since the evidence showed that five members of the family were

dependent on the deceased Parveen Kumar, the deduction should have been to the extent of one-fourth towards personal and living expenses. Thus,

the loss of dependency is re-calculated as [Rs.9,750/-x 3 /4 x 12 x 14] Rs.12,28,500/-, rounded off to Rs.12,29,000/-(Rupees Twelve Lakh and twenty

nine thousand only).

Following the rulings in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150, the

compensation in the sum of Rs.1,00,000/- each towards loss of love and affection and loss of consortium and Rs.25,000/- each towards loss to estate

and funeral expenses are added.

Thus, the total compensation comes to [Rs.12,29,000/- + Rs.1,00,000/- + Rs.1,00,000/- + Rs.25,000/- + Rs.25,000/-] Rs.14,79,000/- (Rupees

Fourteen Lakhs and seventy nine thousand only).

It is noted that the tribunal had apportioned the amount of compensation awarded by it, specifying the share of each claimant. It is directed that the

entire enhanced portion of the award with corresponding interest as levied by the tribunal shall fall to the share of the first appellant (widow) alone, it

to be released to her in the form of an interest bearing fixed deposit receipt taken out from a nationalized bank in her name for a period of seven years

with right to draw periodic interest.

In the appeal of the car driver-cum-owner (MACA 640/2012), the insurer of the car had submitted on 28.02.2013 that it required time to submit

verification report. It is noted that adjournments on this ground were taken on subsequent dates as well. However, no verification report has been

submitted. It is noted that the evidence of RW-1 examined by the insurer was primarily based on the report of the Motor Licensing Officer, Mayur

Vihar (RW-1/A) concerning licence no.94120235. The licence on which Kanhiya Lal Duggal (appellant in MACA 640/2012) has been relying bears

the number 94120233. Apparently, the insurance company of the car misled the tribunal by a report concerning a different licence. Since, despite

having taken adjournments, it has not come with any further report, it is clear that it is not in a position to refute the contentions of Kanhiya Lal Duggal

(appellant in MACA 640/2012) in his appeal.

The exoneration of the insurer of the car by the impugned judgment is thus set aside. It is directed that the liability in terms of the impugned

judgment on account of negligence of the car driver shall be borne by the insurer of the car.

The insurers of both the vehicles are directed to satisfy the award (as modified) in terms of the liability apportioned amongst them by the impugned

judgment by requisite deposits with the tribunal within 30 days making it available to be released to the claimants. The appellant in MACA 640/2012

had been directed by order dated 31.05.2012 to deposit Rs.4,00,000/- as a pre-condition to the stay against execution. It was directed to be converted

into a fixed deposit receipt by order dated 17.09.2012. The said deposited amount with accrued interest thereupon shall be refunded to Kanhiya Lal

Duggal (appellant in MACA 640/2012).

The statutory amount, if deposited, shall be refunded.

Both appeals are disposed of in above terms.