New India Assurance Company Limited vs Sunandha Sharma And Others

Sanjeev Kumar, J

This appeal by the New India Assurance Company Limited (hereinafter referred to as „the insurer‟) is directed against the award dated 25th January, 2014 passed by the Motor Accident Claims Tribunal, Jammu ( for brevity „the Tribunal‟) in claim No.88 of 2010 titled Sunandha Sharma and others v. New India Assurance Company Limited and others, whereby the insurer has been held liable to pay compensation of Rs14,82,000/- along with pendente lite and future interest @ 7.5% per annum to the respondent Nos. 1 an 2 ( „the claimants‟ for short).

With a view to appreciate the grounds of challenge urged on behalf of the insurer, it would be necessary to refer relevant facts:-

On 27th October, 2007, a vehicular accident involving vehicle No.JK02K-9679 (Bus) took place on the National Highway Patli Morh, Bari Brahmana within the jurisdiction of Police Station, Bari Brahmana. In the accident, apart from others, one Bharat Indu Sharma suffered fatal injuries. The offending vehicle was insured with the appellant-insurer and the same was owned by respondent No.3 and driven rashly and negligently by respondent No.4. The next of kin of the deceased i.e. wife and minor son filed a claim petition before the Tribunal claiming compensation to the tune of Rs.30,00,000/- along with interest. The reliance was placed by the claimants on FIR No.0093/2007 registered with Police Station, Bari Brahmana under Sections 279/337 against respondent No.4. The claim petition was contested by the appellant-insurer only, whereas owner and driver of the vehicle despite service chose not to appear and contest the claim, they were, thus, proceeded ex-parte by the Tribunal.

On the basis of the pleadings of the parties, the Tribunal framed following issues:-

"1. Whether an accident occurred on 27.10.2007 at NHW near Patli More Bari Brahmana by rash and negligent driving of offending vehicle JK02K-9679 in the hands of erring driver in which deceased Bharat Indu Sharma suffered fatal injuries and petitioner Chander Dev Vasishth received grievous injuries? (OPP)

If issue No.1 is proved in affirmative whether petitioners are entitled to the compensation, if so from whom? (OPP)

Whether driver of the offending vehicle at the time of accident was not holding valid and effective D/L; if so what is its effect ? (OPR-3)

Relief? (O.P. Parties)"

The claimant-Sunandha Sharma, besides examining herself also recorded the statement of one Jitender Singh as her witness. The insurer, in rebuttal, examined Surinder Paul, Romesh Singh Bhau, Sandeep Kumar and Amit Kumar Ganjoo, as its witnesses. The Tribunal, on the basis of the evidence on record, held issue No.1 proved in favour of the claimants and against the respondents. It was held proved that the deceased Bharat Indu Sharma had died as a result of fatal injuries suffered in the road traffic accident involving the offending vehicle, being driven by its driver in a rash and negligent manner. Issue No.3, the onus to prove whereof was on the insurer, was, however, held proved in favour of the insurer and against the claimants. The Tribunal concluded that the offending vehicle at the time of accident was being driven by a person not competent to drive the vehicle and also the offending vehicle was not having any route permit for the area where the accident took place. Returning its findings on issue No.2, the claimants were held entitled to compensation of Rs.14,82,000/- along with pendente lite and future interest @ 7.5% per annum. In view of the finding on issue No.3, the Tribunal directed the insurer to make payment of compensation to the claimants in the first instance and provided that on satisfying the award, the insurer would be at liberty to recover the award amount paid to the claimants from the insured.

The insurer is aggrieved of and has challenged the award primarily on the following grounds:-

i) The quantum of compensation worked out by the Tribunal by taking the monthly income of the deceased as Rs.10,000/-without there being any adequate proof on record is not sustainable and deserves to be set aside.

ii) In view of the findings of the Tribunal on issue No.3, the appellant-insurer should have been completely absolved of its liability to pay any compensation and that the Tribunal has erroneously applied the principle of pay and recover, which, in the facts and circumstances, was not applicable.

iii) The Tribunal failed to frame issue with regard to the composite negligence of two vehicles which had collided and caused the accident.

iv) The amounts awarded under other heads are also excessive and exorbitant and contrary to the judgments of the Supreme Courts and this Court.

Heard learned counsel for the parties and perused the record.

From a perusal of the claim petition, in its entirety, it is seen that the case set up by the claimants is against the offending bus and its driver- Dev Paul, respondent No.4 herein. It is clearly stated by the claimants that the deceased was travelling in another vehicle i.e. Alto Car bearing registration No.JK02AA/6044, which was hit by the offending vehicle being driven rashly and negligent by respondent No.4. The challan, which is relied upon by the claimants and appended with the claim petition as Annexure-PJ, however, reveals that the police, after investigation, found nobody guilty of rash and negligent driving of both the vehicles and, thus, concluded the challan as not proved. From reading of the objections filed by the insurer, it is evident that the insurer has taken the plea of collision of both the vehicles involved in the accident and have also pleaded that the accident in which the deceased lost his life was a result of negligence of the drivers of both the vehicles. It is seen that despite there being clear pleadings, no issue was struck by the Tribunal. It is also interesting to note that no effort was made by the insurer to have a specific issue in this regard struck by the Tribunal, for, no such application made by the insurer is on record.

In view of the aforesaid conduct of the insurer coupled with the fact that there is sufficient oral evidence on record to demonstrate that the accident in question was a result of rash and negligent driving of the offending vehicle by respondent No.4, I see no justification in remanding this matter back to the Tribunal for framing of additional issue and allowing the parties to lead evidence. Neither before the Tribunal nor before this Court in appeal, any effort was made by the insurer to implead the owner, driver and insurer of the Alto Car bearing registration No.JK02AA-6044 alleged to be the other vehicle involved in the accident.

For all these reasons, I am not inclined to accept the contention of the learned counsel for the insurer for remanding the matter to the Tribunal for framing issue of composite/contributory negligence.

With regard to the applicability of principle of pay and recover, in view of the findings of the Tribunal on issue No.3, learned counsel for the insurer fairly conceded that in the given facts and circumstances, the Tribunal was right in directing the insurer to pay compensation in the first instance to the claimants and then recover the same from the insured.

That apart, legal position in this regard is well settled. Even in the circumstances where the insurer can wriggle out of its liability to indemnify the insured and pay compensation legally, the Courts have been directing the insurer to pay the compensation to the third party with liberty to recover the amount paid from the insured.

So far as quantum of compensation is concerned, the Tribunal has taken the monthly income of the deceased as ₹ 10,000/-. It has come in the evidence that the deceased was working as site incharge with M/s Ram Lal and Sons Contractor and was getting a monthly salary of ₹ 10,000/-. The claimants have also placed on record Form-16 A to indicate that the deceased was income tax payee and the employer had been deducting TDS from the salary. PW Jatinder Singh, claiming to be the co-worker with the deceased has also corroborated the claim of the claimants that the deceased, at the time of death, was receiving ₹ 10,000/- per month as salary. In the absence of contrary evidence, the Tribunal was left with no option but to accept the income of the deceased as ₹ 10,000/-. The deceased, at the time of accident, was 47 years of age, therefore, the Tribunal should have increased the income of the deceased by 25% instead of 30% on account of loss of future prospects, as has been done by the Tribunal. The Tribunal has, however, applied the deduction of 1/3rd to the annual income correctly. Even the multiplier of 13 applied by the Tribunal is correct. The compensation awarded under the conventional heads, however, is not in consonance with the law laid down in National Insurance Company Ltd. v Pranay Sethi and others, (2017) 16 SCC 680 the same, therefore, deserves to be modified.

Monthly income of the deceased ₹ 10,000/-, adding 25% towards loss of future prospects, the total monthly income comes to Rs 12,500/-. Deducting 1/3rd on account of personal living expenses, the monthly loss of dependency would come to ₹ 8333/-, thus, the annual loss of dependency comes to ₹ 99,996/-. Applying the multiplier of 13, the total loss of dependency would come to Rs 12,99,948/-. The claimants, therefore, would be entitled to following amount of compensation:-

Loss of dependency : Rs 12,99,948/-

Loss of estate : Rs 15,000/-

Funeral Expenses : Rs 15,000/-

Loss of consortium to respondent Nos. 1 &2 @ Rs 40,000/- each : ₹ 80,000/-

Total : Rs 14,09,948/-

However, the rate of interest awarded as also the other conditions imposed by the Tribunal shall remain unaltered.

The appeal is, accordingly partly allowed. The award of the

Tribunal is modified.