Oriental Insurance Company Limited & Others vs Rekha Sharma & Others

Sudhanshu Dhulia, J

These two appeals arise out the same award dated 20.06.2015 passed by the Motor Accident Claims Tribunal, Dehradun in MACP Case No.26 of 2012, whereby an amount of Rs.85,45,000/- (Rupees Eighty Five Lakh Forty Five Thousand only) has been awarded as compensation to the claimants. Hence, they have been clubbed together.

Appeal from Order No. 493 of 2015 has been preferred by the Oriental Insurance Company Limited against the award dated 20.06.2015, whereby the learned Tribunal has directed the Insurance Company to give the awarded amount to the claimants.

So far as Appeal from Order No. 515 of 2015 is concerned, it has been filed by the claimants for enhancement of the award dated 20.06.2015.

Brief facts of the case are that on 21.01.2012 at about 03:30 PM, Sushil Kumar (deceased) was coming towards Dehradun from Miyawala on his motorcycle bearing registration no. UP15-L-5767. When Sushil Kumar reached near "Gular Ghati", a truck bearing registration no. HR-58-0043, which was being driven by its driver rashly and negligently, hit the back of the motorcycle of Sushil Kumar, as a result of which, Sushil Kumar fell down and sustained grievous injuries and subsequently died while he was being taken to the hospital. The deceased has left behind his widow Smt. Rekha Sharma (claimant no. 1), his two children Himanshu and Dipanshu (claimant nos. 2 and 3) and his old mother Smt. Vimla Devi (claimant no. 4). Smt. Vimla Devi passed away during the pendency of the present appeals before this Court.

The vehicle which was involved in the accident was admittedly insured with the Insurance Company i.e. the Oriental Insurance Company Limited.

Written statements were filed on behalf of the respondents denying the claim of the claimants.

On the basis of the pleadings of the rival parties, the following issues were framed by the learned Tribunal.

"1. Whether accident was caused by the driver of the Truck No. HR-58-0043 who was driving the vehicle rashly and negligently from the side of Miyawala near Gular Ghati as it hit the back of the motorcycle of the deceased bearing registration no. UP15L-5767, as a result, the deceased sustained grievous injuries and passed away. If yes, then its effect?

Whether there was contributory negligence of the driver of the motorcycle in the said accident?

Whether the driver of the truck no. H.R.58-0043 was not having a valid driving licence on the date of accident. If yes, then its effect?

Whether on the date of accident, the truck was not having a valid permit?

Whether the claim petition is barred due to non-joinder of owner and insurance company of the motorcycle as necessary parties?

Whether the claimants are entitled for any compensation, if yes, then to what extent and from which of the respondents?

Whether the deceased was having a valid driving licence at the time of the accident?"

In order to substantiate their claim for the compensation, the claimants filed the postmortem report, insurance policy, registration of vehicle and all the relevant documents before the Tribunal.

As to whether the truck which was involved in the accident whether it was being driven rashly and negligently, the findings of the tribunal are that on 21.01.2012 the truck was being driven from Miyawala to Gullar Ghati rashly and negligently when it hit the motorcycle of the deceased on its back, as a result, the deceased fell down from the vehicle and sustained grievous injuries and subsequently died. One Mool Chand was produced by the claimants as PW2. FIR was lodged at Police Station Diowala on the same day i.e. on 21.01.2012 at about 06:15 PM. The incident is of 03:15 PM. PW2 Mool Chand is the Gram Pradhan of Gram Harrawala said that on 21.01.2012 he was doing inspection in his area and he saw at about 03:00 to 03:15 PM that a truck which was being driven rashly and negligently from Miyawala to Gullar Ghati hit the motorcycle of the deceased bearing registration no. UP15L-5767, as a result of which, the driver of the vehicle fell down and was seriously injured. This witness had called the 108 Ambulance, which subsequently arrived. This witness recognized the injured person as brother-in-law of his friend Sri Rajnish Kumar Sharma and consequently he had also informed Sri Rajnish Kumar Sharma who was his friend that his brother-in-law has just met with an accident. Thereafter the injured was sent in 108 Ambulance to Doon Hospital. In his cross-examination, this witness has denied the question being put by the Insurance Company that the motorcycle was being driven rashly and negligently and he sticks to his version that it was the truck which was being driven rashly and negligently.

PW3 is the brother-in-law of the deceased who came to the spot and took his brother-in-law to the hospital. PW 3 clearly confirms the statement of PW2 who is the Gram Pradhan of village Harrawala that he was informed by PW2 about the incident and thereafter he reached the spot.

After hearing the evidence, the learned Tribunal came to the conclusion that the accident occurred due to the fact that the truck involved in the accident was being driven rashly and negligently by its driver.

As far as issue no. 2 is concerned, the contributory negligence of the motorcycle driver i.e. the deceased, the Tribunal came to the conclusion that there was no contributory negligence on the part of the driver of the motorcycle.

The Insurance Company had tried to set up a case for contributory negligence inasmuch as its case was that the deceased was driving the motorcycle between the truck and a tractor, and therefore he had contributed in the accident. For this, the Insurance Company has produced a witness i.e. the driver of the truck who had supported the case of the Insurance Company. However, since the driver was also an accused in the criminal case which has been filed by the claimants, the Tribunal rightly did not believe its testimony and ultimately came to the conclusion that there was no contributory negligence on the part of the deceased.

On issue no. 3, the finding of the learned Tribunal is that the truck and the driver of the truck had valid licence on the date of the accident.

On issue no. 4 as regarding the permit of the truck, there is also a finding that the truck was having a valid permit.

As regarding issue no. 7, the learned Tribunal recorded a finding that the deceased was having a valid driving licence at the time of the accident.

So far as compensation is concerned, the Tribunal recorded the finding that the deceased was posted as Material Manager in ONGC and his monthly income at that time was Rs.85,000/- (Rupees Eighty Five Thousand only) i.e. Rs.10,20,000/- (Rupees Ten Lakh Twenty Thousand only) per annum. Out of this amount, one-fourth of the amount was deducted towards his personal expenses and thereafter the annual income of the deceased was fixed as Rs.7,65,000/-(Rupees Seven Lakh Sixty Five Thousand only) for the purposes of compensation. The learned Tribunal then applied a multiplier of 11 and fixed the compensation as Rs.84,15,000/- (Rupees Eighty Four Lakh Fifteen Thousand only).

The learned Tribunal further granted Rs.1,00,000/- (Rupees One Lakh only) for the loss of consortium, Rs.25,000/- (Rupees Twenty Five Thousand only) towards funeral expenses and Rs.5,000/- (Rupees Five Thousand only) towards loss of loss and affection. Thus the learned Tribunal awarded a total compensation of Rs.85,45,000/- (Rupees Eighty Five Lakh Forty Five Thousand only) to the claimants.

However, the case of the Insurance Company is that the deceased was only having a licence for driving light motor vehicles (Non-Transport) while he was admittedly driving a Motorcycle with gear (MCWG) and the licence of light motor vehicle is not applicable in this case. Therefore, under the facts and circumstances of the case, this Court is of the opinion that on this aspect there was a contributory negligence on the part of the deceased and therefore ten per cent amount is to be deducted from the total compensation.

In view of the above, the appeal being AO No. 493 of 2015 of the Insurance Company is partly allowed.

So far as the appeal of the claimants being AO No.515 of 2015 for enhancement is concerned, this Court finds no ground for interference with the compensation awarded by the tribunal on various heads. However, this Court is of the view that the tribunal has not considered the future prospects of the deceased.

In the case of National Insurance Company Limited v. Pranay Sethi and Others, reported in (2017) 16 SCC 680, the Constitution Bench of Hon'ble Apex Court with regard to future prospect has held as under:

"59.3 While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax."

Therefore, in view of the above, since the age of the deceased at the time of his death was 55 years and he was a permanent employee getting regular salary, future prospects of 15 per cent is liable to be given, which comes to Rs. 1,53,000/- (15 % of the annual income of the deceased). After deducting one-fourth of this amount towards personal expenses, it comes to Rs. 1,14,750/- (Rupees One Lakh Fourteen Thousand Seven Hundred Fifty only). Thereafter applying the multiplier of 11, the amount of compensation towards future prospects comes to Rs. 12,62,250/- (Rupees Twelve Lakh Sixty Two Thousand Two Hundred Fifty only). Thus, the total compensation comes to 98,07,250/- (Rupees Ninety Eight Lakh Seven Thousand Two Hundred Fifty only) i.e. Rs. 85,45,000/- (Rupees Eighty Five Lakh Forty Five Thousand only) awarded by the tribunal + Rs. 12,62,250/-(Rupees Twelve Lakh Sixty Two Thousand Two Hundred Fifty only) towards future prospects.

However, since in the connected appeal filed by the insurance company, this Court has already held that there was a contributory negligence on the part of the deceased and as such ten per cent of the amount of compensation is liable to be deducted, therefore an amount of Rs. 9,80,725/-(Rupees Nine Lakh Eighty Thousand Seven Hundred Twenty Five only) shall be deducted from the total amount of compensation.

Consequently, the appeal of the claimants is also partly allowed.

Let a copy of this order along with the lower court record be sent to the Tribunal concerned. The Insurance Company shall deposit the entire amount along with 6 per cent interest per annum on the amount not deposited as yet, from the date of filing of the claim petition, with the Tribunal concerned after adjusting the amount already deposited, within three weeks from the date of production of a certified copy of this order. Let the statutory amount of Rs.25,000/-(Rupees Twenty Five Thousand only) be also remitted to the concerned tribunal. After the amount is deposited by the insurance company, the same shall be released forthwith in favour of the claimants.