Gujarat High Court
Oriental Insurance Company Limited vs Onkarsingh Rampalsingh on 15 July, 2021
Author: B.N. Karia
Bench: Vineet Kothari, B.N. Karia
C/FA/1799/2012 JUDGMENT DATED: 15/07/2021
ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
(1) R/FIRST APPEAL NO. 1799 of 2012
With
(2) R/FIRST APPEAL NO. 1211 of 2012
With
(3) R/CROSS OBJECTION NO. 161 of 2012
In
FIRST APPEAL NO. 1799 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE B.N. KARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
FIRST APPEAL NO. 1799 OF 2012
ORIENTAL INSURANCE COMPANY LIMITED
Versus
(1) ONKARSINGH RAMPALSINGH
(2) MRS SUSHMA ONKARSINGH
(3) JAMSHED ALIMOHAMMED
(4) RAJINDRAKUMAR HARBANSILAL
(5) KARTIKEYA MOHANPRASHAD SHARMA
(6) MOHANPRASAD SHARMA
(7) BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED
FIRST APPEAL NO. 1211 OF 2012
BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED
Versus
(1) JAMSHED ALIMOHAMMED
(2) RAJINDRAKUMAR HARBANSLAL
(3) ORIENTAL INSURANCE COMPANY LIMITED
Page 1 of 22
Downloaded on : Thu Sep 09 04:23:53 IST 2021
C/FA/1799/2012 JUDGMENT DATED: 15/07/2021
ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s)
(4) KARTIKEYA MOHANPRASHAD SHARMA
(5) MOHANPRASAD SHRMA
(6) HEIRS AND LRS OF NEHA ONKARSINGH
(6.1) DR ONKARSINGH RAMPALSINGH
(6.2) MRS SUSHMA ONKARSINGH
CROSS OBJECTION NO. 161 of 2012
(1) DR ONKARSINGH RAMPALSINGH
(2) MRS SUSHMA ONKARSINGH
Versus
(1) ORIENTAL INSURANCE COMPANY LIMITED
(2) JAMSHED ALIMOHAMMED
(3) RAJINDRAKUMAR HARBANSLAL
(4) KARTIKEYA MOHANPRASHAD SHARMA
(5) MOHANPRASAD SHRMA
(6) ORIENTAL INSURANCE COMPANY LIMITED
================================================================
Appearance:
IN FIRST APPEAL NO. 1799 of 2012:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
DS AFF.NOT FILED (R)(71) for the Respondent(s) No. 3,4
MR MOHSIN M HAKIM(5396) for the Respondent(s) No. 1
RULE SERVED BY DS(65) for the Respondent(s) No. 5,6
IN FIRST APPEAL NO. 1211 of 2012:
MR VIBHUTI NANAVATI for the Appellant(s) No. 1
MR MOHSIN M HAKIM(5396) for the Respondent(s) No. 1
MR MAULIK J SHELAT for the Respondent No.3
RULE SERVED NO. 4 AND 5
MR MTM HAKIM for the Respondents No. 6.1 and 6.2
IN CROSS OBJECTION NO. 161 of 2012
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1 and 2
MR MAULIK J SHELAT for the Respondent No.3
RULE SERVED NO. 1-4,5
MR VIBHUTI NANAVATI for the Respondent No.6
==========================================================
CORAM:HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE B.N. KARIA
Date : 15/07/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE B.N. KARIA)
1. As all the proceedings are arose from a common Judgment and Page 2 of 22 Downloaded on : Thu Sep 09 04:23:53 IST 2021 C/FA/1799/2012 JUDGMENT DATED: 15/07/2021 ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s) Award passed by learned Motor Accident Claims Tribunal (Aux.) at Vadodara in M.A.C.P. No. 2123/2003, the Appellant-Oriental Insurance Company Limited has filed First Appeal No. 1799 of 2012 and Appellant-Bajaj Allianz General Insurance Company Limited has filed First Appeal No. 1211 of 2012 while original Claimants have preferred Cross Objection No. 161 of 2012.
2. Short facts of the present case may be summarized as under:
2.1 That, on 21.09.2003 in the evening hours, the younger daughter of the original Petitioner namely Neha and elder daughter Puja along with their friends were going to Jambu Ghoda in Motor vehicle car bearing registration No. GJ-06-AB-7659 drove by their friend Kartikeya ie., Opponent No.4. Near village Bhat, just opposite to Dargah on Halol-
Bodeli Road one Truck bearing registration No. HR-55-2645 driven by Opponent No.1 came in the rash and negligent manner with excessive speed on wrong side of the road and dashed with the front side of the Car. As a result of this accident, passengers sitting in the Car namely Mrs. Puja Kaura, Mr. Kartikeya, Mr. Levrath and Miss Salakha Diwan sustained grievous injuries whereas deceased Neha, daughter of the original Petitioner died of the injuries received in the said accident on the spot. The original Petitioners being parents of the deceased Neha preferred the petition claiming the compensation on account of death of their daughter to the tune of Rs. 30,00,000/-.
Page 3 of 22 Downloaded on : Thu Sep 09 04:23:53 IST 2021
C/FA/1799/2012 JUDGMENT DATED: 15/07/2021 ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s) 2.2 Learned Tribunal, after considering the oral as well as documentary evidence produced on record and haring all the parties, on the issue of negligence, came to the conclusion that the accident occurred due to contributory negligence of both the Opponents No. 1 and 4 and accordingly, the blameworthiness of the Opponent No.1-Truck Driver and Opponent No.4-Car Driver was apportioned as 60-40% and gave the reply of issue No.1 in the affirmative holding liability of the Opponents jointly and severally to the original petitioners together with proportionate cost and interest @ 7.5% per annum from the date of application till its realization. However, it was directed that the Opponents No.1 to 3 shall be jointly and severally liable to pay 60% of the awarded amount of compensation as discussed in para 35 of the judgement and Opponents No. 4 to 6 shall be jointly and severally liable to pay 40% of the awarded amount of compensation to the Original Petitioners with cost and interest thereon at the rate of 7.5% per annum.
3. Heard learned Counsel Mr. Maulik Shelat appearing for the Appellant-Oriental Insurance Company Limited in First Appeal No. 1799 of 2012; learned Counsel Mr. Vibhuti Nanavaty appearing for the Appellant - Bajaj Allianz General Insurance Company Limited in First Appeal No. 1211 of 2012 and learned Counsel Mr. M.T.M.Harkim with Mr. Mohsin M.Hakim, learned Counsel appearing for the Original Claimant in First Appeal Nos. 1799 of 2012;
Page 4 of 22 Downloaded on : Thu Sep 09 04:23:53 IST 2021
C/FA/1799/2012 JUDGMENT DATED: 15/07/2021 ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s)
4. Learned Advocate for the Appellant in First Appeal No. 1799 of 2012 has submitted that Appellant is the insurer of the Truck bearing Registration No. HR-55-2645 and original Opponent No.3 before the learned Tribunal. As the truck was involved in the accident in question wherein occupant were sitting in the Car bearing Registration No. GJ-6- AB-7659. The Tribunal has partly allowed the Claim Petition vide impugned judgment and Award which is assailed by way of present Appeal. It is further submitted that while appreciating the evidence, learned Tribunal has clearly found in para 35 that driving licence of the Truck Driver was fake. That, however deceased was a third party and as per the settled legal position, Insurance company ie. present Appellant was directed to pay 60% amount of the Award for negligency of the Truck Driver then recover it from the owner and driver of the insured truck. That, learned Tribunal failed to observe in the operative portion of the judgment or in the Award passed regarding the Appellant Insurance Company to pay the compensation of 60% of the awarded amount then to recover from the driver or owner of the Insured Truck. That, however present Appellant has deposited its share of awarded amount of 60% as per the condition of stay granted by this Court. It is further submitted that in absence of such observation by the learned Tribunal in operative portion of the impugned Judgment and Award, Appellant-Insurance company would not be in a position to recover the amount as deposited Page 5 of 22 Downloaded on : Thu Sep 09 04:23:53 IST 2021 C/FA/1799/2012 JUDGMENT DATED: 15/07/2021 ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s) by the present Appellant ie., 60% of the awarded amount and file an Execution Petition against its insured and his driver. Hence, it is urged that the operative portion of the impugned Judgment and Award is required to be modified observing that the Appellant Insurance Company may pay the compensation of its liability ie., 60% and then recover the same from the original Opponents No.1 and 2 ie., driver and owner of the Insured Truck bearing registration No. HR-55-2645 by way of Execution Proceedings.
5. Learned counsel Mr. Vibhuti Nanavaty appearing for the Appellant in First Appeal No. 1211 of 2012 has submitted in his arguments that the findings of the learned Tribunal recorded against the Issue No.1 apportionment of negligence is completing erroneous and against the evidence of Opponent No.4(Exh. 78), who was the driver of the car bearing registration No. GJ-6-AB-7659 at the relevant time of the accident. It was further submitted that the adverse inference against the driver of the truck was required to be drawn as he has not stepped into the witness box to rebut the evidence led by the Opponent No.4 below Exh.
78. It was further submitted that as per the evidence of Opponent No. 4 (Exh. 78), Opponent No.1 was plying the vehicle without following traffic rules and at the time of accident, he was on wrong side of the road. That, deceased Neha Onkarsingh was sitting beside the driver on the front seat of the car and she sustained serious injuries out of the accident Page 6 of 22 Downloaded on : Thu Sep 09 04:23:53 IST 2021 C/FA/1799/2012 JUDGMENT DATED: 15/07/2021 ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s) whereas the driver of the car, Opponent No.4 has sustained minor injuries. That, learned Tribunal has wrongly interpreted the contents of Spot Panchnama Exh. 42 and committed serious error holding the driver of the Car -Opponent No.4 negligent to the extent of 40%. That, the findings recorded by the learned Tribunal on the issue of negligency are not in consonance with the FIR Exh. 110 and Spot Panchnama Exh. 42. It was further submitted that driver of the Truck-Opponent No.1 was solely negligent in causing the accident as the Truck in question dashed against the Car and at the relevant time, the Truck was entirely on the wrong side. It was further submitted that the findings of the learned Tribunal on the issue of dependency benefits are contrary to the provisions of Law. That, the claimants are the parents aged about 56 and 52 years respectively at the time of filing of the petition and they have their own independent income out of their vocation which was also brought on record during the recording of oral evidence of Claimant No.2 below Exh. 31. That, the Claimant No.1 had a pension income of Rs. 19,000/- per month and was also having private practice in medicine and claimant No.2 was a Teacher in Ambe Vidyalaya. That, applying multiplier of 11 years was a clear error on the part of the learned Tribunal instead of applying 5 years multiplier. Ultimately, it was requested by learned Counsel for the Appellant in First Appeal No. 1211 of 2012 to allow the appeal preferred by the Insurance Company by quashing and Page 7 of 22 Downloaded on : Thu Sep 09 04:23:53 IST 2021 C/FA/1799/2012 JUDGMENT DATED: 15/07/2021 ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s) setting aside the impugned judgment and Award passed by learned Tribunal holding the liability of the Appellant at 40% negligent and to pay apportionment amount.
6. Learned counsel for the original Claimants has submitted that the income of the deceased at the relevant point of time was Rs. 1,54,242/- per annum as per record. The Income Tax Returns and Form No.16 of the deceased have been produced vide Exhs. 52 and 53. That, deducting amount of Rs. 3,000/- by way of TDS, income would come to Rs. 1,51,242/- per annum. The future prospective rise in income of the deceased at 50% would require to be added and that would be Rs. 75,621/- per annum and the total income would come to RS. 2,26,863/- per annum. It is further submitted that as the deceased was unmarried, thus 50% amount towards personal expenses would be deducted and that would be Rs. 1,13,431.50 per annum and loss of annual dependency would come to Rs. 1,13,431.50. Relying upon the judgment passed in National Insurance Company versus Pranay Sethi reported in 2017(16) SCC 680 and Joseph Philip C.J. versus Judies reported in 2018(11)SCC 638, it was submitted that as the age of the deceased was 26 years at the time of accident, multiplier of 17 years would require to be applied and therefore, the total loss of dependency would come to Rs. 19,28,335/-. Further loss of estate and funeral expenses as per the preposition of the law laid down by the Hon'ble Supreme Court in case of Page 8 of 22 Downloaded on : Thu Sep 09 04:23:53 IST 2021 C/FA/1799/2012 JUDGMENT DATED: 15/07/2021 ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s) Pranay Sethi Rs. 30,000/- would be added and original Claimants/petitioners would be entitled to claim and get Rs. 19,58,335/- deducting Rs. 12,62,747/- awarded by the Tribunal. Additional amount of compensation would be Rs. 6,95,588/- and rate of interest of incident on additional amount of compensation may be awarded as per the Judgment and Award passed by the learned Tribunal. Making submissions in First Appeal No. 1799 of 2012, learned Counsel Mr. Hakim has submitted that the Insurance Company is liable to satisfy the amount awarded, and thereafter, it may be recovered from the owner and driver of the vehicle. In support of his arguments, he has placed his reliance on the judgments reported in 2018(9)SCC 650 and 2018(3) SCC 800. So far as First Appeal No. 1211 of 2012, it was submitted that main ground raised by the Insurance Company that driver of the car, in which, the deceased was sitting, ought not to have been held 40% negligent for causing the accident cannot be considered. That, learned Tribunal has rightly considered the documentary evidence including the Spot Panchnama, FIR etc as well as oral evidence and has committed no error in holding the liability of the Insurance Company as well as respective drivers of both the vehicles. Hence, it was requested by learned Counsel for the original Claimants to enhance the amount of compensation awarded to the original Petitioners/claimants by the learned Tribunal and adopted the multiplier of 17 years as the deceased was aged 26 years at the time of Page 9 of 22 Downloaded on : Thu Sep 09 04:23:53 IST 2021 C/FA/1799/2012 JUDGMENT DATED: 15/07/2021 ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s) accident. He has further requested to dismiss First Appeal No. 1211 of 2012 preferred by the Insurance Company and pass necessary order in First appeal No. 1799 of 2012.
7. This Court perused the documentary evidences produced placed before the learned Tribunal below and has considered the oral submissions made by learned Counsels for the parties to decide the issue involved in First Appeal No. 1799 of 2012. This Court would like to refer the findings arrived at by learned Tribunal in Para 35 as under:
"35. So far the arguments advanced by the Ld. Advocate Mr. Shah for the opponent No. 3 regarding fake license possessed by the truck driver is concerned, no doubt, the policy Ex- 98 of the truck was in subsistence on the date of risk, however, the lsit of documents produced at Ex - 40 from Ex - 88 to 93 clearly disclose that the Driving licence of the Opponent No. 1 was fake one and it does not pertains with the office records as investigated by HITESH VASHIST, New Delhi and the same was reported to the manager of the Divisional Office of opponent No. 3 as "In valid". Therefore, there is much substance in the arguments so advanced by the Ld. Advocate for the Opponent No. 3 However, only because the same was fake, the same, having regard to the settled legal position, would not absolve the insurer to reimburse the owner of a vehicle in respect of the amount awarded in favour of a third party by the Tribunal in exercise of its jurisdiction U/s. - 166 of the Act. While deciding the Issue No. 1 it was held that the opponent No. 1 had contributed to the extent of 60%. Therefore, I am of the opinion that interest of justice shall be sub - served if the Opponent No. 3 is directed to pay the 60% of awarded amount with a liberty to recover the same form the owner and driver of the vehicle i.e. Opponent No. 1 and 2.Page 10 of 22 Downloaded on : Thu Sep 09 04:23:53 IST 2021
C/FA/1799/2012 JUDGMENT DATED: 15/07/2021 ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s)
8. From the findings arrived at by the learned Tribunal, driving licence of the Opponent No.1 was clearly found fake licence. Learned Tribunal has also referred the documents produced vide Exh. 40. From Exhs. 88 to 93, investigation was made by one Mr. Hitesh Vashist, New Delhi who has reported to the Opponent No.3 in connection with driving licence as "In valid". The negligency part of the opponent drivers was assessed by the learned Tribunal as 60-40% ie., opponent No.1-Truck Driver and Opponent No.4-Car driver. However, the clear findings in Para 35 in respect of fake driving licence and there is no dispute that deceased was a third party, Appellant-Insurance Company was directed to pay 60% amount of the award being negligence of the driver of the truck. From the operative portion of the Judgment and Award, it appears that no such observation was made in respect of the Appellant -Insurance Company to first pay compensation ie., 60% of the amount and then to recover from the driver and owner of the Insured Truck. The present Appellant being the insurer of the motor vehicle ie. Truck bearing registration No. HR-55-2645 has deposited its share of awarded amount (60%) as per condition of the stay granted by this Court. In absence of any observation in operative portion of the Judgment and Award, the Appellant would not be in a position to recover the amount deposited by him or file an Execution Petition against the owner and driver of the Page 11 of 22 Downloaded on : Thu Sep 09 04:23:53 IST 2021 C/FA/1799/2012 JUDGMENT DATED: 15/07/2021 ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s) Motor Vehicle, and therefore, there is substance in the arguments advanced by learned Counsel for the Appellant in First Appeal No. 1799 of 2012 to incorporate in the Judgment and Award passed by the learned Tribunal observing that the Appellant-Oriental Insurance Company Limited may be permitted to recover the amount of fixed liability (60%) from the original Opponent No.1 and 2 ie., Driver and Owner of the insured Truck bearing registration No. HR-55-2645 by way of Execution proceedings.
With these modifications in the Judgment and Award passed by the learned Tribunal, the First Appeal No. 1799 of 2012 stands partly allowed. No costs.
9. So far as First Appeal No. 1211 of 2012 is concerned, the learned Tribunal while concluding the issue of negligence has referred certain documents as well as verified the documents produced before it. Relevant portion of the discussion made by learned Tribunal are as under:
16) In view of the aforesaid oral evidence tendered by opponent No. 4, if we switch over the contents made in FIR, Ex - 110, the author of the same is none other than one of the occupants named Dev Vrat Rana, wherein he has stated that he along with his other friends including deceased Neha were proceedings towards Jambughoda in the said car from Vadodara. When they hardly reached at some distance near village Shivrajpur located on Halol Pavagadh road, all of a sudden they found the curvature and the alleged truck also came therefrom. Since the road was narrow and the alleged truck came on middle of the road, Page 12 of 22 Downloaded on : Thu Sep 09 04:23:53 IST 2021 C/FA/1799/2012 JUDGMENT DATED: 15/07/2021 ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s) it dashed with their front portion of car. All of them shouted. He came out from the car and also dragged out the other accompanying friends.
Since deceased Neha was seated by the side of the car driver, she sustained grievous injuries. Other occupants also sustained injuries all over the body. They all were shifted to the civil hospital in a jeep, but before they could reach the hospital, deceased Neha breathed her last.
17) Considering the oral evidence tendered by opponent No. 4 as well as the contents of the FIR, the accident can be said to have occured while approaching the curvature and taking the turn by the respective vehicle drivers. It is therefore, necessary to know what are duties of the driver while approaching the cruvature road. For determination of these questions, as to when the respective drivers saw each other for the first time as they were heading to the curvature, the speed of the respective vehicles, the blowing of the horn, steps taken to control the respecitve vehicles, care and caution exercised for avoiding the collision etc. are material features. But nothing could be elicited in the cross examination of the Opponent No. 4 as to when he saw the on coming vehicle driver before the incident took place in as much as during his cross examination by opponent no. 3, he outright denied the suggestion that prior to occurance, he could not notice. If he says that he was driving in moderate speed then why did not he took the step to control the vehicle and avert the accident. Secondly, when he noticed the turn, whether he first conveyed by any available device to the driver of the oncoming vehicle approaching the wrong side or whether he waited while taking the turn or to know about the approaching of the oncoming vehicle where there are chances of imminent danger of collision. Therefore, in view of such duties when evidences tendered by the opponent No.4 is examined, it can candidly be said that the car driver i.e. opponent No. 4 also committed the breach of his such duties by observing the traffic rules.
18) In view of the above discussed rival submissions of the parties, I Page 13 of 22 Downloaded on : Thu Sep 09 04:23:53 IST 2021 C/FA/1799/2012 JUDGMENT DATED: 15/07/2021
ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s) have analyzed the material brought on record by the parties, icluding the FIR. To appreciate the evidence of the parties including the witnesses, the Panchnama drawn by the police after the complaint was lodged is material. The same is produced at Ex - 42. It can be said from the Panchnama that the place of occurrence is situated near village Bhat, just opposite Dargah on Halol - Bodeli road. The alleged turck No. HR55-2645 was stationary facing the wastward, whereas the Car No. GJ-6AB-7659 was found stationary facing the eastward. There is a curve on the place of occurence. The width of the alleged road is 22ft. The front side wheel of the truck is at the distance of 12 ft. from northern edge of the driver side and the cleaner side wheel from southern side is at the distance of 3 ft. The rear driver side wheel is at the distance of 8 ft. from northern side and cleaner side rear wheel is at the distance of 6 ft. from southern side. The car of the opponent No. 4 was stationary facing the eastern direction towards western side at the distance of 8 ft. from cleaner side wheel. The front cleaner side wheel was at the distance of 1 ft. from southern edge of the road. The driver side both the wheels were on kachha edge of road. The car was extensively damaged. The damage caused to the said car was estimated to the tune of Rs. 5.00 lakhs, whereas the damaged to the truck is estimated to the tune of only Rs. 200/-
19) In view of the oral evidence tendered by the applicant No. 2 and the Opponent No. 4 as well as the topographical situation elucidated in panchnama, this tribunal has to ascertain in what manner the incident took place and has to separate the grain from the chaff and ignore which is untrue and accept which is credible."
20) As discussed herein above, considering the deposition of Opponent No. 4 - Karitkey Mohan Prasad Sharma, who is also an eye witness, as well as the contents of the FIR filed by one of the occupants named Dev Vrat - eye witness, it also reveals that when they just reached near the place of occurance, there was a curve road. Even the Spot Panchnama Page 14 of 22 Downloaded on : Thu Sep 09 04:23:53 IST 2021 C/FA/1799/2012 JUDGMENT DATED: 15/07/2021 ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s) also betrays that there was a curve. Nothing could be elicited in the chide/ cross examination regarding the safety measures taken by the opponent No. 4 in the event of misshape. On the other hand, the opponent No. 1 - truck driver, who could have enlighten the occurrence chosen to keep away from the witness box and that too without really sound reasons. Therefore, the above discussed tale-tell story, in my opinion, indeed be constructed as a telling circumstance against both the vehicle drivers. Hence, this is a case wherein the doctrine "In pari delicto potior est condition defendentis" which means when both the parties are equally to blame, neither can hold the other liable, is squarely and solely applicable to the conduct of the driver of respective vehicle. Therefore, I am of the view that the accident occurred due to contributory negligence of both, opponent No. 1 and opponent No. 4 and accordingly, the blameworthiness of the opponent No. 1 - truck driver and opponent No. 4 car driver is apportioned as 60:40%.
10. The Appellant in First Appeal No. 1211 of 2012 is unable to make out any case from the record that how the contributory negligence fixed by the Tribunal that 60-40% is wrong or improper as the FIR was filed by one of the occupants sitting in the Car namely Dev Vrat Rana, who is the eye witness and his evidence was recorded before the learned Tribunal. He clearly stated that when they reached near the place of occurrence, there was a curve road. The Spot Panchnama also supports that there was a curve. Nothing was found from the cross-examination in respect of safety measures taken by the Opponent No.4 in the event of misshape. The Truck driver, who is the Opponent No.1, was not examined, however, he could have enlighten the occurrence has chosen to Page 15 of 22 Downloaded on : Thu Sep 09 04:23:53 IST 2021 C/FA/1799/2012 JUDGMENT DATED: 15/07/2021 ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s) keep away from the witness box without any solid reason. The Opponent No.4-Kartikey Mohan Prasad Sharma, who was an eye witness, was examined before the learned Tribunal. As learned Tribunal has considered the oral as well as documentary evidence and has come to the conclusion that the opponent No.1-Truck Driver and Opponent No.4-Car Driver were neglignet up to 60-40%, this Court has not found any substance in the arguments advanced by learned Counsel for the Appellant to fix the liability of the Opponent No.1 solely to causing the accident. The Respondent No.4, who was the Car driver was equally negligent for causing the accident as he himself has not tried to take any measures in driving the vehicle in the curve road. Learned Tribunal has committed no error on this issue holding the liability of the drivers of the vehicle ie., Opponent No.1 and 4 apportionate as 60-40%. So far Income part is concerned, it appears that the Mother of the deceased was examined before the learned Tribunal as well as one witness namely Manu Dangi, who was co-student of the deceased at the relevant point of time. She has clearly stated that she herself and deceased were studying together and staying in the same room during the Academic year 1999- 2001. In the final yaer, she herself had opted MBA Programme and deceased had opted H.R.C. The deceased, after completing training period, was confirmed as a Deputy Manager in the Department of Human Resources and TQM with salary of Rs. 12,000/- per month Page 16 of 22 Downloaded on : Thu Sep 09 04:23:53 IST 2021 C/FA/1799/2012 JUDGMENT DATED: 15/07/2021 ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s) besides Rs. 12,830/- per month Organizational Allowances. She was to appear in TOFEL examination and she had fulfilled all the formalities and after successful completion of her course, she could have been placed in U.K. itself as she had a bright career. Income Tax returns ie., Saral Form and Form No. 16 were produced on record vide Exh. 52 and 53 respectively showing the gross salary of the deceased for the Assessment Year 2002-2003 stating that she was earning Rs. 1,54,242/- and while deducing the TDS of Rs. 3,000/-, the net gross salary comes to Rs. 1,51,242/-. It appears that while calculating the annual dependency of Rs. 2,26,863/- Tribunal had considered age of the deceased as 26 years, as she was unmarried and applicants were the father and mother of the deceased, multiplier of 11 years was applied. Learned Tribunal has also followed the judgment of the Hon'ble Apex Court in case of "Sarla Verma". As the deceased was a Bachelor, Tribunal deducted 50% of the amount by way of personal and living expenses, this Court is of the view that there is no patent error to this extent in calculating the amount of deceased as argued from the Appellant, and therefore, on this issue also, the submissions made by learned Counsel for the Appellant in First Appeal No. 1211 of 2012 requires to be rejected. First Appeal No. 1211 of 2012 is accordingly dismissed. No costs.
11. So far as Cross Objection No. 161 of 2012, it appears from the findings of the learned Tribunal that admittedly age of the deceased was Page 17 of 22 Downloaded on : Thu Sep 09 04:23:53 IST 2021 C/FA/1799/2012 JUDGMENT DATED: 15/07/2021 ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s) 26 years at the time of the accident and was unmarried. Thus, the learned Tribunal adopted multiplier of 11 years observing as such, the future loss of dependency would come to Rs. 24,95,493/-, however, as per ratio laid down in Sarla Verma case, where deceased person was Bachelor, in that case, 50% would be deducted as personal and living expenses, and therefore, 50% amount was deducted under the head of dependency benefits. The applicants were held entitled to get Rs. 12,47,747/- adding Rs. 5,000/- towards loss of estate and personal expenses. Learned Counsel Mr. Hakim appearing for the original claimants, in support of his arguments, has placed reliance in case of National Insurance Company Limited versus Pranay Sethi and Others reported in (2017) 16 Supreme Court Cases 680.
12. Case of Sarla Verma and Others v. Delhi Transport Corporation and Another reported in reported in (2009) 6 SCC 121 is discussed by Hon'ble Apex Court in case of Pranay Sethi( Supra) in paras 29 to 31, Hon'ble Apex Court has observed that:
29. At this stage, a detailed analysis of Sarla Verma (supra) is necessary. In the said case, the Court recapitulated the relevant principles relating to assessment of compensation in case of death and also took note of the fact that there had been considerable variation and inconsistency in the decision for Courts and Tribunals on account of adopting the method stated in Nance v. British Columbia Electric Railway Co. Ltd. and the method in Davies v. Powell Duffryn Associated Collieries Ltd.. It also analysed the difference between the Page 18 of 22 Downloaded on : Thu Sep 09 04:23:53 IST 2021 C/FA/1799/2012 JUDGMENT DATED: 15/07/2021 ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s) considerations of the two different methods by this Court in Susamma Thomas (supra) wherein preference was given to Davies method to the Nance method. Various paragraphs from Susamma Thomas (supra) and Trilok Chandra (supra) have been reproduced and thereafter it has been observed that lack of uniformity and consistency in awarding the compensation has been a matter of grave concern. It has stated that when different tribunals calculate compensation differently on the same facts, the claimant, the litigant and the common man are bound to be confused, perplexed and bewildered. It adverted to the observations made in Trilok Chandra (supra) which are to the following effect:-
15. We thought it necessary to reiterate the method of working out just compensation because, of late, we have noticed from the awards made by tribunals and courts that the principle on which the multiplier method was developed has been lost sight of and once again a hybrid method based on the subjectivity of the Tribunal/court has surfaced, introducing uncertainty and lack of reasonable uniformity in the matter of determination of compensation. It must be realised that the Tribunal/court has to determine a fair amount of compensation awardable to the victim of an accident which must be proportionate to the injury caused.
30. While adverting to the addition of income for future prospects, it stated thus:-
24. In Susamma Thomas this Court increased the income by nearly 100%, in Sarla Dixit the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words actual salary should be read as actual salary Page 19 of 22 Downloaded on : Thu Sep 09 04:23:53 IST 2021 C/FA/1799/2012 JUDGMENT DATED: 15/07/2021 ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s) less tax). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.
31. Though we have devoted some space in analyzing the precedential value of the judgments, that is not the thrust of the controversy. We are required to keenly dwell upon the heart of the issue that emerges for consideration. The seminal controversy before us relates to the issue where the deceased was self-employed or was a person on fixed salary without provision for annual increment, etc., what should be the addition as regards the future prospects. In Sarla Verma, the Court has made it as a rule that 50% of actual salary could be added if the deceased had a permanent job and if the age of the deceased is between 40 50 years and no addition to be made if the deceased was more than 50 years. It is further ruled that where deceased was self-employed or had a fixed salary (without provision for annual increment, etc.) the Courts will usually take only the actual income at the time of death and the departure is permissible only in rare and exceptional cases involving special circumstances."
13. In the instance case, admittedly there was no dispute of age of the deceased at the time of accident, as she was 26 years. However, multiplier of 11 years adopted by the learned Tribunal, and thereafter, 50% deduction as made by way of personal and living expenses. Page 20 of 22 Downloaded on : Thu Sep 09 04:23:53 IST 2021
C/FA/1799/2012 JUDGMENT DATED: 15/07/2021 ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s)
14. Here, in the present case, multiplier of 17 years is required to be considered, considering the age of the deceased as she was 26 years. Considering income of Rs. 1,13,431-50 ps per annum total loss of dependency would come to Rs. 19,28,335-00. Further, towards loss of estate and funeral expenses, the sum of Rs. 30,000/- would required to be allowed as prayed by the claimants as per the observations made in case of Pranay Sethi (Supra).
15. The view taken by the Constitutional Bench of Hon'ble Apex Court in case of National Insurance Company Limited versus Pranay Sethi and Others reported in (2017) 16 Supreme Court Cases 680 holding that the standards fixed by this Court in Sarla Verma on the aspect of deduction for personal living expenses was confirmed in subsequent judgment of Reshma Kumari in para 43.6 holding that this would appropriate uniformity and consistency in determining the multiplier to be applied. The Constitutional Bench in case of Pranay Sethi (Supra) admitted the chart of fixing multiplier as expanded in Sarla Verma case. It is settled law that multiplier should be determined with reference to the age of the deceased.
16. The Motor Vehicles Act 1988 is a beneficial legislation which has been termed with the object of providing relief to the victims or their family members in case of genuineness. In case when the parents have lost their unmarried daughter then they are entitled to be awarded for lost Page 21 of 22 Downloaded on : Thu Sep 09 04:23:53 IST 2021 C/FA/1799/2012 JUDGMENT DATED: 15/07/2021 ORIENTAL INSURANCE COMPANY LIMITED Versus ONKARSINGH RAMPALSINGH & 6 other(s) of consortium under the head of filial consortium and that amount is to be awarded as per the amount fixed. Therefore, towards loss of estate and funeral expenses, the applicants shall be entitled to claim for sum of Rs. 30,000/-.
Accordingly, the Cross-Objection filed by the original Claimants is hereby allowed to that extent. The Appellant-Insurance Company is directed to pay the balance amount of Rs.6,95,588/- to original claimants by way of compensation apportionately as 60-40% share within a period of 2 months from the date of passing of this judgment as observed by the learned Tribunal with interest @ 7.5 % per annum. Cross Objection 161 of 2012 in First Appeal No. 1799 of 2012 is accordingly disposed of. No costs.
(DR. VINEET KOTHARI,J) (B.N. KARIA, J) K. S. DARJI Page 22 of 22 Downloaded on : Thu Sep 09 04:23:53 IST 2021