Sadhna Nagpal and Others vs L.I.C. of India and Another

K. Kannan, J.—The appeal in F.A.O. No. 3863 of 2008 is for the enhancement of claim for compensation and the appeal in F.A.O. No. 2807 of 2008 is on the issue of entitlement to indemnity from the insurer arising out of the same accident. The Tribunal had merely awarded a compensation under no fault basis. It is a case where the deceased was a passenger in the car that belonged to Life Insurance Corporation. The vehicle was driven by an employee of Life Insurance Corporation to whom the vehicle had been given on licence in consideration of his employment and the agreement produced before court showed Life Insurance Corporation as the registered owner having purchased the vehicle for use of the same by its employee as a term of service. The claimants'' contention was that the vehicle ran over a traffic divider and turned turtle resulting in the death of the driver and another passenger. The accident was spoken by a person claiming to be a fellow traveller in the same vehicle. His presence in the vehicle was doubted, since it was elicited that he was travelling in another vehicle and a false case was alleged to have been introduced by the appellant. The fact of the accident itself was not in doubt nor was the involvement of the vehicle ever in doubt. A DDR that had been entered soon after the accident recorded the statement of the son of the deceased that no one was responsible for the accident. The person who was said to have given a statement had denied the fact that he knew what was recited in the DDR. I will not go as far as to say that the appellant''s son signed the statement without understanding it. I would, however, recreate the situation to infer that no one wanted a criminal case to be brought in a situation where the officer of Life Insurance Corporation, who was driving the vehicle, had made some error in judgment and drove the vehicle over a traffic divider that resulted in the vehicle turning turtle and causing fatal injuries to the persons travelling in the vehicle. Even if the entire evidence of PW 1 as the person, who was said to have been a fellow traveller in the vehicle, were to be discarded, I still hold that the accident answers a res ipsa loquitur situation. A traffic divider is meant to make possible the flow of traffic with little possibility of collision of vehicles coming from the opposite directions. If a vehicle goes over a traffic divider, it cannot be the result of any careful driving. The negligence of the driver is writ large in such a situation and the Tribunal was in error in holding that the negligence had not been established and that the entry in the DDR concluded the issue that the accident had taken place without any negligence of any person. So long as it is not suggested that the accident was an act of God, then, the vehicle going over a traffic divider must be seen as the result of negligent driving of the driver of the car. Learned counsel appearing for the insurance company would contend that even the ownership of the vehicle is with Life Insurance Corporation cannot be easily interfered by virtue of the agreement which Life Insurance Corporation had with the driver of the car, Vijay Kumar, who was also an employee of Life Insurance Corporation. The agreement clearly spelt out in a term that Life Insurance Corporation was the registered owner and the consideration had also been paid only by Life Insurance Corporation for the purchase of the car. I have no doubt, in my mind, that the vehicle was owned only by Life Insurance Corporation and it had been given to its employee for his use. Learned counsel wanted to make an issue out of the fact that admittedly the deceased and the driver of the car were proceeding to Delhi for some personal work and if it had been an official car, he could not use the car for his personal use. It is completely a different matter whether such user was permitted. So long as the vehicle remained with the ownership of Life Insurance Corporation and it was also insured with the insurance company, the liability of the insured for consequences of the accident cannot be doubted. More so, I have seen the terms of the policy which is a package policy and covers expressly a risk to any person travelling in the said vehicle. The claim by the claimants will have to be satisfied by L.I.C. and L.I.C. is entitled to full indemnity thereof.

As regards quantum of compensation to be determined, the deceased was 48 years of age and was drawing a salary of Rs. 14,369. He was working as Secretary with Municipal Committee, Nilokheri, District Kamal and since he had a security of tenure of service with prospect of increase in salary, I make a provision of 30 per cent increase in salary in the manner suggested by the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, If a provision for deduction of tax at 10 per cent is also to be made, the average income after tax will be Rs. 16.812.70 p.m. I will make a deduction of 1/4th for personal expenses of the deceased and adopt a multiplier of 13. The loss of dependency will be Rs. 19,67,850.90. I will make a further addition of Rs. 5,000 towards the loss of consortium to the wife and provide another Rs. 5,000 towards the loss of love and affection for the minor child and adding a further sum of Rs. 5.000 towards funeral expenses and Rs. 5,000 for loss to estate, the total compensation will be Rs. 19,87,850, rounded off to an amount of Rs. 19,87,900. The amount shall be distributed amongst the widow, children and mother in the ratio of 2:2:2:2:1. The accident has taken place in the year 2006 and since I have adopted a multiplier of 13, I will allow for withdrawal of 60 per cent of the amount to the widow and major children and the remaining amount shall be deposited in a nationalised bank for a period of 5 years split in five equal shares. The first share shall be for a period of one year and the second for a period of two years and so on up to five years. As regards the minor''s share, the same shall be deposited in a nationalised bank and the mother shall be entitled to withdraw the interest once in a quarter towards the maintenance of the child. On attaining majority the quondam minor shall be entitled to withdraw 75 per cent and remaining 25 per cent shall be retained for a further period of five years and split in same manner as referred to above and permitted to be withdrawn on the expiry of the respective periods. As regards the share of the mother, the same shall become payable forthwith. The amount in excess of what has been awarded by the Tribunal already, shall attract interest at the rate of 6 per cent from the date of petition till the date of payment.

The award is modified and the appeal is allowed to the above extent. The appeal in F.A.O. No. 2807 of 2008 is also allowed providing to it the right of indemnity from the insurer.