The New India Assurance Co. Ltd. vs Smt. Gurmit Kaur & Ors.

Deepak Gupta, J.

These three appeals filed by the insurer and the connected three cross-objec+ons arise out of the same motor vehicular accident. Since the ac-cident, the evidence and the findings recorded by the learned Motor Accident Claims Tribunal, Kaithal, are common, all the ma,ers are being decided by this common order.

The accident in ques+on took place on 29.03.2009. In the said accident, Sukhvinder Singh and Premchand lost their lives, whereas Subba Singh sustained injuries. Three separate claim pe++ons were filed by the re-spec+ve claimants, which were consolidated and decided by the learned Tri-bunal vide common award dated 29.01.2013.

The insurer has filed the three appeals primarily ques+oning the finding on negligence. Its conten+on is that since the Maru+ car, in which the deceased and injured were travelling had struck the offending truck from be-hind, there was contributory negligence on the part of Sukhvinder Singh, who was driving the car, and the Tribunal failed to appreciate this aspect of the ma,er.

The respec+ve claimants, on the other hand, have filed cross-ob-jec+ons seeking enhancement of compensa+on in accordance with the princi-ples subsequently se,led by the Hon'ble Supreme Court in Sarla Verma (Smt.) and others v. Delhi Transport Corpora�on and another, (2009) 6 SCC 121, Na�onal Insurance Company Limited v. Pranay Sethi and others, (2017) 16 SCC 680 and Magma General Insurance Company Ltd. v. Nanu Ram @ Chuhru Ram and others, (2018) 18 SCC 130.

This court has considered submissions of both the sides and pe-rused the record.

The case of the claimants is that on 29.03.2009, Sukhvinder Singh, Premchand and Subba Singh were travelling in Maru+ car No.HR-01B-5732 from their village Theh Butana towards Ludhiana. Sukhvinder Singh was driving the car on the le> side of the road. At about 10.35 p.m., when they reached near Samarala Chowk, Ludhiana, truck No.PB-7H-9495, which was proceeding ahead of the car and was being driven by Baljinder Singh, sud-denly applied brakes in the middle of the road without giving any indica+on or signal. Consequently, the car struck the truck from behind. The occupants of the car sustained serious injuries, as a result of which Sukhvinder Singh and Premchand subsequently died, whereas Subba Singh survived with mul+ple injuries.

The occurrence was reported to the police and FIR No.50 dated 03.03.2009 under Sec+ons 279, 337, 338, 427 and 304-A IPC was registered against Baljinder Singh. The claimants a,ributed the accident en+rely to the rash and negligent manner in which the offending truck was being driven.

The learned Tribunal, upon considera+on of the evidence led by the par+es, recorded a categorical finding that the accident had occurred on account of rash and negligent driving of Baljinder Singh, driver of the offend-ing truck. It was further found that the driver possessed a valid and effec+ve driving licence, the offending vehicle had a valid permit and no breach of the terms and condi+ons of the insurance policy had been established. Conse-quently, the insurer and the driver-cum-owner were held jointly and severally liable.

This Court finds no ground to interfere with the aforesaid find-ing.

The plea of contributory negligence cannot be accepted merely from the fact that the car had struck the truck from behind. The mere occur-rence of a rear-end collision does not, by itself, establish negligence on the part of the vehicle following the vehicle ahead. Contributory negligence is a ques+on of fact and has to be established by the party asser+ng it by placing material on record showing want of reasonable care on the part of the claimant.

In the present case, the insurer had denied its liability and had taken the general stand that the vehicle had been falsely implicated in the ac-cident. However, as fairly conceded by learned counsel for the insurer, no spe-cific plea of contributory negligence on the part of Sukhvinder Singh was taken before the learned Tribunal and no issue on that aspect was sought to be framed.

More importantly, Baljinder Singh, the driver of the offending truck, did not enter the witness-box. He, therefore, did not explain the circum-stances in which he had applied the brakes, much less establish that the brak-ing was necessitated by some unforeseen circumstance, or that any warning or signal had been given to the traffic following the truck.

Once the claimants had placed before the Tribunal the circum-stances showing that the truck proceeding ahead had suddenly been brought to a halt in the middle of the road without signal, the burden of establishing the alleged contributory negligence could not be discharged by the insurer merely by poin+ng to the fact of collision from behind.

The Tribunal had the advantage of assessing the evidence and has recorded a reasoned finding a,ribu+ng negligence to the truck driver. No perversity, misreading of evidence or material irregularity has been pointed out in the said finding. The appellate Court, therefore, finds no jus+fica+on to subs+tute the said finding with a conclusion based merely on conjecture.

Accordingly, the three appeals filed by the insurer are found to be devoid of merit and are dismissed.

Coming to the cross-objec+ons, the income of deceased Sukhvinder Singh has not been disputed by learned counsel for the claimants. The learned Tribunal had assessed his monthly income at ₹4,200/- per month on the basis of the minimum wages applicable to an unskilled worker. The said assessment is, therefore, maintained.

Sukhvinder Singh was 24 years of age. In terms of the law laid down by the Hon'ble Supreme Court in Pranay Sethi (supra), a person below 40 years of age having a fixed/no+onal income is en+tled to addi+on towards future prospects. Accordingly, 40% is required to be added towards future prospects.

His annual income, therefore, comes to ₹50,400/- and a>er addi-+on of 40% towards future prospects, the annual income comes to ₹70,560/-. Since there were three dependants, namely, the widow and two minor chil-dren, one-third is liable to be deducted towards personal and living expenses of the deceased. The annual contribu+on to the family thus comes to ₹47,040/-.

The deceased was 24 years of age. Applying the mul+plier of 18 prescribed in Sarla Verma (supra), the loss of dependency works out to ₹8,46,720/-.

In addi+on thereto, the claimants are en+tled to compensa+on under the conven+onal heads in accordance with the principles laid down in Pranay Sethi (supra), read with Magma General Insurance Company Ltd. v. Nanu Ram (supra). The widow is en+tled to spousal consor+um and the two minor children to parental consor+um compensa+on under this head works out to be ₹1,20,000/-. The claimants are also en+tled to compensa+on to-wards loss of estate and funeral expenses to the tune of ₹15,000/- each.

On the basis of the amounts adopted by the learned Tribunal and the enhancement permissible under the aforesaid judgments, the total compensa+on payable to the claimants on account of death of Sukhvinder Singh is assessed at ₹9,96,720/-.

The Tribunal had awarded ₹5,81,200/-. A>er adjustment thereof, the claimants are en+tled to an enhanced amount of ₹4,15,520/-, which is rounded off to ₹4,16,000/-.

In the connected claim arising out of the death of Premchand, the learned Tribunal had assessed his monthly income at ₹4,200/-. The said assessment has also not been disputed before this Court. His annual income, therefore, comes to ₹50,400/-.

The deceased was 27 years of age and, therefore, an addi+on of 40% towards future prospects is required to be made in terms of Pranay Sethi (supra). His annual income a>er such addi+on comes to ₹70,560/-.

There were six claimants, namely, the widow, three minor chil-dren and the parents of the deceased. Accordingly, one-fourth is liable to be deducted towards personal and living expenses of the deceased. The annual loss of dependency thus comes to ₹52,920/-.

Considering the age of the deceased, the appropriate mul+plier is 17. The loss of dependency accordingly comes to ₹8,99,640/-.

The widow, minor children and parents of the deceased cons+-tute the immediate family members en+tled to consor+um in accordance with the law declared in Magma General Insurance Company Ltd. (supra). Thus, the widow is en+tled to spousal consor+um, the children to parental consor-+um and the parents to filial consor+um. Compensa+on under this head works out to be ₹2,40,000/-.

The claimants are also en+tled to compensa+on under the con-ven+onal heads of loss of estate and funeral expenses to the tune of ₹15,000/- each. The amount of ₹28,000/- proved to have been incurred to-wards the treatment of the deceased prior to his death is also liable to be in-cluded.

Accordingly, the total compensa+on payable on account of the death of Premchand is assessed at ₹11,97,640/-. A>er deduc+ng the amount of ₹6,09,200/- awarded by the learned Tribunal, the claimants become en+-tled to an enhanced compensa+on of ₹5,88,440/-, rounded off to ₹5,89,000/-.

Insofar as Subba Singh is concerned, the learned Tribunal awarded ₹40,000/- towards medical expenses, ₹10,000/- towards pain and suffering and ₹10,000/- towards special diet, making a total award of ₹60,000/-.

Although it was pleaded that Subba Singh had suffered perma-nent disability, learned counsel for the cross-objector has not been able to point out any medical evidence or disability cer+ficate establishing permanent disability a,ributable to the accident. In the absence of such evidence, no amount can be awarded towards permanent disability or loss of future earn-ing capacity.

Nevertheless, keeping in view the nature of injuries suffered by the claimant, including fractures and injuries to the vital parts of the body, the compensa+on awarded by the Tribunal appears to be on the lower side. The total compensa+on is, therefore, enhanced from ₹60,000/- to ₹75,000/-. The claimant is consequently en+tled to an addi+onal amount of ₹15,000/-.

For the foregoing reasons, all the three appeals filed by the in-surer are dismissed, whereas the three cross-objec+ons filed by the respec+ve claimants are allowed to the extent indicated hereinabove.

Consequently, the claimants arising out of the death of Sukhvin-der Singh shall be en+tled to enhanced compensa+on of ₹4,16,000/-.

The claimants arising out of the death of Premchand shall be en-+tled to enhanced compensa+on of ₹5,89,000/-.

Injured claimant Subba Singh shall be en+tled to enhanced com-pensa+on of ₹15,000/-.

The enhanced compensa+on shall be payable jointly and sever-ally by the insurer and the driver-cum-owner of the offending vehicle, to-gether with interest at the rate of 7.5% per annum from the date of filing of the respec+ve claim pe++ons +ll realiza+on.

In the case of Sukhvinder Singh, the enhanced compensa+on shall be shared equally amongst his widow and two minor children, along with propor+onate interest.

In the case of Premchand, an amount of ₹1,20,000/- each shall be payable to the widow and the three minor children, making a total of ₹4,80,000/- along with propor+onate interest. The remaining amount of ₹1,09,000/- shall be shared by the parents of the deceased in equal propor-+on, along with propor+onate interest.

The amounts falling to the share of the minor claimants shall be dealt with in accordance with the direc+ons of the learned Tribunal and the applicable rules governing disbursement and protec+on of compensa+on payable to minors.

All the six ma,ers, namely, the three appeals and the three cross-objec+ons, stand disposed of in the above terms.

Pending applica+on(s), if any, also stand disposed of. A photocopy of this order be placed on the files of the connected ma,ers.