The New India Insurance Company Limited v. Smt.Kanta Bai Jain And ORS.

NAFR HIGH COURT OF CHHATTISGARH BILASPUR M. A. (C) No. 51 of 2014 (Arising out of award dated 24.09.2013 passed in Claim Case No.18 of 2008 by the Fourth Additional Motor Accident Claims Tribunal, Raipur, Chhattisgarh) The New India Assurance Company Limited, through Senior Divisional Manager, Divisional Office No.1, First Floor, Madina Building, Jail Road, Raipur, Chhattisgarh ---- Appellant

Versus

1.

Smt. Kanta Bai Jain, aged about 65 years, W/o Late Shri Rikhabchand Ji Jain (Begani) 2.

Smt. Manita Jain (Begani), aged 32 years, W/o Late Shri Deepak Jain (Begani) 3.

Moulik Jain (Begani) aged about 5 years, D/o Late Shri Deepak Jain (Begani) (wrongly mentioned as W/o) 4.

Kumari Rishika Jain (Begani) aged about 2 years, D/o Late Shri Deepak Jain (Begani) (wrongly mentioned as W/o) All above are R/o Khariya Bada, Sharma Gali, Budapara, P.S. and District Raipur, Chhattisgarh 5.

Shri Atul Jain, S/o Shri Rekhchand Jain, Rampuriya, R/o Gurhiyari, Raipur, Chhattisgarh 6.

Smt. Punjinder Kaur W/o Jagdeep Singh, R/o village Sarowali, Tahsil Bhiwandi, District Thane (Maharashtra) 7.

Shri Awadh Narayan Yadav, aged about 43 years, S/o Shri Ramdular Yadav, R/o village Narvey, P.S. Barda, District Ajamgarh (U.P.) 8.

National Insurance Co. Ltd. Through Senior Divisional Manager, Divisional Office First Floor, Mobin Mahal, G.E. Road, District Raipur, Chhattisgarh ---- Respondents M. A. (C) No. 1194 of 2013 1.

Smt. Kanta Bai Jain, aged about 70 years, W/o Late Shri Rikhabchand Ji Jain (Mother of Deceased)

2.

Smt. Manita Jain (Begani), aged about 37 years, W/o Late Deepak Jain (Begani) (Widow of Deceased) 3.

Master Moulik Jain (Begani), aged about 10 years, S/o Late Deepak Jain (Begani) (Minor son of Deceased) 4.

Kumari Rishika Jain (Begani), aged about 7 years D/o Late Deepak Jain (Begani) (Minor daughter of Deceased) Appellant No. 3 and 4 are minor through their natural guardian mother Smt. Manita Jain, All R/o Khariyabada Sharma Gali, Budhapara, P.S. Kotwali, District Raipur, Chhattisgarh. PIN 492001 ---- Appellants

Versus

1.

Shri Atul Jain S/o Rekhchand Jain Rampuria Niwas Gudhiari, Raipur, Chhattisgarh 2.

The New India Assurance Co. Ltd. Through Senior Divisional Manager, Divisional Office No.1, 1st Floor, Madina Building, Jail Road, Raipur, Chhattisgarh 3.

Smt. Punjinder Kaur, W/o Jagdeep Singh, R/o village Sarowali, Tahsil Bhivandi, District Thane, Maharashtra 4.

Awadh Narayan Yadav, aged about 48 years, S/o Shri Ramdular Yadav R/o village Narve, P.S. Barda, District Aajamgarh (U.P.) 5.

National Insurance Company Limited through Senior Divisional Manager, Divisional Office, First Floor, Mobin Mahal, G.E. Road, District Raipur, Chhattisgarh ---- Respondents MAC No.51 of 2014 For Appellants : Shri Sourabh Sharma, Advocate For Respondents No.1 to 4 : Shri Sachin Singh Rajput, Advocate For Respondent No.8 : Shri Goutam Khetrapal, Advocate For Respondents No.5 to 7 : None MAC No.1194 of 2013 For Appellants : Shri Sachin Singh Rajput, Advocate For Respondent No.2 : Shri Raj Awasthi, Advocate For Respondents 1 & 3 to 5 : None

Hon'ble Shri P. R. Ramachandra Menon , Chief Justice Hon'ble Shri Parth Prateem Sahu, Judge Judgment on Board Per Parth Prateem Sahu , Judge 22.07.2020 1.

Both the appeals are arising out of award dated 24.09.2013 passed by Fourth Additional Motor Accident Claims Tribunal, Raipur, Chhattisgarh (hereinafter referred to as 'Claims Tribunal') in Claim Case No.18 of 2008, whereby learned Claims Tribunal allowed the claim application in part and awarded a total sum of Rs.13,67,000/- as compensation to the claimants in a death case. MAC No.1194 of 2013 is filed by the claimants challenging the finding recorded by learned Claims Tribunal with regard to contributory negligence on the part of deceased Deepak Jain and further seeking enhancement of award passed by learned Claims Tribunal, whereas MAC No.51 of 2014 is filed by the Insurance Company of Maruti 800 bearing registration No.

CG-04/B/4770 (hereinafter referred to as 'maruti car') challenging the fastening of liability to pay the amount of compensation awarded by learned Claims Tribunal to the extent of 50% even after recording the contributory negligence on the part of the deceased/driver of maruti car, of which, the appellant is the insurer. As both the appeals are being decided by this common judgment, the parties are being referred according to their status in claim application.

2.

Facts relevant for disposal of these appeals, are that, on 28.12.2006, claimants were returning on maruti car from Dongargarh to Durg, when maruti car reached near Somni, at that relevant time, offending truck driven by non-applicant No.4 dashed the maruti car from its front side. In the aforementioned accident, Deepak Jain/driver of maruti car suffered grievous injuries and died on the spot. The accident was reported to concerned Police Station, based upon which, crime No.235 of 2006 for the offence punishable under Sections 279, 337 and 304A of the IPC was registered against non-applicant No.4. 3.

Claimants have filed claim application under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'M.V. Act') before the concerned Claims Tribunal mentioning therein that on the date of accident, deceased was aged about 36 years and earning Rs.1,25,000/- per annum. It was also pleaded that they were dependent on the deceased and claimed Rs.45,00,000/- as compensation on account of untimely motor accidental death of Deepak Jain.

4.

Non-applicant No.1 submitted reply to claim application. While denying the pleadings made in the claim application, pleaded that on the date of accident, maruti car was insured with non-applicant No.2/Insurance Company and there was no breach of conditions of insurance policy.

5.

Non-applicant No.2/Insurance Company of maruti car submitted

reply to claim application and pleaded that as there was head on collision between two vehicles, the principle of 'contributory negligence' is attracted, therefore, the liability, if any, to pay the amount of compensation will not be only upon it; there was breach of conditions of insurance policy and amount of compensation claimed is highly exaggerated.

6.

Non-applicant No.5/Insurance Company of offending truck submitted reply to claim application while denying the adverse pleadings made against it, pleaded that the accident is on account of sole negligence on the part of deceased himself/driver of maruti car; the principle of 'contributory negligence' is attracted in the facts of the case. It was further pleaded that on the date of accident, non-applicant No.4/driver of offending truck was driving the vehicle without there being any valid and effective driving license.

7.

Learned Claims Tribunal based on the pleadings of respective parties, formulated as many as five issues for consideration including the issue with regard to contributory negligence on the part of the deceased (driver of maruti car).

8.

On appreciation of the pleadings, evidence and material placed on record by the respective parties, learned Claims Tribunal held that there was valid and effective driving license with non-applicant No.4; death of Deepak Jain was on account of motor accidental injuries arising out of head on collision between two vehicles i.e.

maruti car and offending truck; there was contributory negligence on the part of deceased (driver of maruti car); awarded Rs.13,67,200/- as compensation and fastened the liability of 50% of amount of compensation to be satisfied by non-applicants No.1 and 2 and 50% of the liability to be satisfied by non-applicants No.3 and 5.

9.

We will take up the appeal filed by the claimants i.e. MAC No.1194 of 2013 first for enhancement of the award and also challenging the finding of contributory negligence to the extent of 50%.

10.

Learned counsel for the claimants submits that learned Claims Tribunal erred in awarding inadequate amount of compensation; the finding with regard to issue No.2(a) about driving license of the deceased is not based on any evidence but on presumption and surmises; the amount awarded on other conventional heads is on lower side; not awarding of amount towards future prospects to the extent of 50% and application of multiplier is erroneous. He further submits that the finding recorded by learned Claims Tribunal that deceased himself was contributory negligent to the extent of 50% to be erroneous being without any evidence and is liable to be set aside.

11.

So far as the quantum of amount of compensation to be calculated is concerned, the claimants in support of their pleadings with regard to income of the deceased filed copies of

income tax returns submitted by the deceased for the assessment years 2004-05, 2005-06 and 2006-07 as Ex.P/17. The income tax return for the assessment year 2006-07 was filed on 09.08.2006 whereas the date of accident is 28.12.2006. The gross total income of the deceased has been shown as Rs.1,17,389/- for the year 2006-07, Rs.91,340/- for the year 2005-06 and Rs.76,680/- for the year 2004-05. As all these income tax returns are prior to the date of accident and death of Late Deepak Jain showing gradual increase in income. The income as mentioned in Ex.P/17 for the year 2006-07 can be taken as the proof of income of the deceased on the date of accident, more so, in absence of challenge to the document. The net income of the deceased on the date of accident can be taken as Rs.

1,17,389/- minus income tax for the purpose of calculating the amount of compensation. On the date of accident, deceased as per date of birth shown in the income tax return as 08.08.1970 was aged about 36 years and 4 months i.e. less than 40 years of age, therefore, there will be an addition of 40% of the established income towards future prospects in view of the judgment passed by Hon'ble Supreme Court in the matter of National Insurance Company Limited v. Pranay Sethi and others1 as the deceased was not in a permanent employment.

Supreme Court in the matter of Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another2, appropriate deduction towards personal and living expenses would be 1/4th. On the date of accident, as the deceased was in the age group between 35 to 40 years, therefore, the appropriate multiplier would be 15.

12.

If the calculation made by learned Claims Tribunal is taken into consideration, learned Claims Tribunal has taken the income of the deceased as Rs.1,20,000/- per annum by rounding it off after taking note of the income as mentioned in Ex.P/17 income tax return for the year 2006-07 as Rs.1,17,389/-. Learned Claims Tribunal applied the multiplier of 15 and applied deduction of 1/4th towards personal and living expenses, which is in consonance with the law laid down by Hon'ble Supreme Court in the matter of Sarla Verma (Smt.) (supra). Learned Claims Tribunal has not awarded any amount towards future prospects and further awarded only Rs.17,000/- towards other conventional heads, which is also on lower side.

13.

The Hon'ble Supreme Court in the matter of United India Insurance Company Limited v. Satinder Kaur @ Satwinder Kaur and Others passed in Civil Appeal No.2705 of 2020 on 30.06.2020 for awarding the amount of compensation on other conventional heads has relied upon the judgment passed by Constitutional Bench in Pranay Sethi (supra) and Magma 2 (2009) 6 SCC 121

General Insurance Company Limited v. Nanu Ram Alias Chuhru Ram and Others3. The amount of other conventional heads are to be awarded under three heads; which are (i) Loss of Consortium (ii) Loss of Estate (iii) Funeral Expenses. In the said judgment, Hon'ble Supreme Court has further taken note of its earlier judgment passed in Magma General Insurance Company Limited (supra), in which, concept of 'consortium' has been explained. It can be of three types; (i) Parental consortium (payable to children because of the death of parents); (ii) Spousal consortium (payable to the spouse because of the death of the partner) and (iii) Filial consortium (payable to the parents because of the death of children).

14.

In view of aforementioned discussions, in the considered opinion of this Court, just and proper amount of compensation is to be awarded to the claimants. For the reasons stated herein-above, the amount of compensation to be awarded to the appellants/claimants requires reconsideration and recalculation, which is in the following terms :

The income of deceased is taken as Rs.1,17,389/- per annum as mentioned in Ex.P/17 (income tax return for the year 2006-07), by adding 40% towards future prospects i.e. Rs.46,956/-, the yearly income of the deceased comes to Rs.1,64,345/- (1,17,389 + 46,956). For the purpose of computing compensation, net income is to be taken, which (2018) 18 SCC 130

means gross income - income tax. As per the income tax slab of the year 2006-07 is as under :

Upto Rs.1,00,000 - Nil Rs.1,00,000 to 1,50,000 - 10% of the amount exceeding 1,00,000 Rs.1,50,000 to 2,00,000 - Rs.5,000 + 20% of the amount exceeding 1,50,000 The tax liability of the deceased come to Rs.5,000 + 14,345 x 20%, therefore, the net income of the deceased will be Rs.1,56,476/- (1,64,345 - 7896) The deceased was survived by widow, two children and widow mother, therefore, there will be a deduction of 1/4th towards his personal and living expenses i.e. Rs.39,119/- (1,56,476 / 4) in view of the case law of Sarla Verma (Smt.) (supra), the yearly dependency of the claimants' comes to Rs.1,17,357/- (1,56,476 - 39,119). At the time of accident, the deceased was shown to be 36 years and 4 months as per date of birth mentioned in income tax return (Ex.P/17), therefore, multiplier of 15 would be applicable in the present case.

After applying the multiplier of 15, the total loss of dependency comes to Rs.17,60,355/- (1,7,357 x 15). Apart from above loss of dependency, the claimants will be further entitled for a sum of Rs.40,000/- towards spousal consortium to the wife, Rs.

Rs.40,000/- towards filial consortium to the widow mother, Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses.

15.

On the basis of above recalculation, total compensation comes to Rs.19,10,355/- (17,60,355 + 40,000 + 40,000 + 40,000 + 15,000 + 15,000) instead of Rs.13,67,000/- as calculated by the learned Claims Tribunal.

16.

Now we deal with other ground raised by learned counsel for the claimants that the finding recorded by learned Claims Tribunal with regard to contributory negligence on the part of the deceased to the extent of 50%.

17.

Perusal of First Information Report (Ex.P/2) would show that the date of accident is 28.12.2006 at about 21.15 hours i.e. 9.15 PM. Though, there was pleading by the Insurance Company of offending truck with regard to contributory negligence based on account of head on collision between two vehicles, but they have not produced any evidence before learned Claims Tribunal. Even the driver and owner of offending Truck have not participated in the proceedings before learned Claims Tribunal. 18.

Upon perusal of reply submitted by Insurance Company of maruti car would show that they have very specifically pleaded that the accident took place due to sole negligence of the driver of offending truck and there is no negligence on the part of the deceased (driver of maruti car). This fact has been brought on

record by way of an amendment, which appears to be after remand of the case by this Court vide order dated 04.11.2011 passed in MAC No.635 of 2009 in an appeal filed by non-applicant No.5/Insurance Company of offending truck. Non-applicant No.5/Insurance Company of offending truck submitted reply to claim application pleading therein that there was contributory negligence on the part of the deceased (driver of maruti car) as there was head on collision between two vehicles. In an appeal filed by non-applicant No.5/Insurance Company of offending truck before this Court in MAC No.

635 of 2009, this Court while taking note of the documents of the criminal case including the spot map, arrived at a conclusion that issue of contributory negligence has not been properly decided by learned Claims Tribunal and remitted back the case for its fresh reconsideration. After remand, non-applicants have examined one witness, by name, S.K. Ahuja (NAW(2)-1), who is administrative officer of Insurance Company of maruti car. In his evidence, he admitted that the policy was issued for the period from 21.04.2006 to 20.04.2007 for the maruti car in the name of non-applicant No.1 as deceased was not liable for the accident, the Insurance Company is also not liable and further admitted that no case was registered against deceased Deepak Jain.

19.

Learned Claims Tribunal after giving opportunity to the respective parties on the issue of contributory negligence as per the remand order and decided the issue in paragraph-11 of the impugned

award. Perusal of paragraph-11 of the impugned award would show that learned Claims Tribunal has taken into consideration only the spot map (Ex.P/3) for arriving at a conclusion that there is contributory negligence and that too to the extent of 50% on the part of the deceased (driver of maruti car).

20.

Learned counsel appearing for the claimants has placed reliance on the judgment passed by Hon'ble Supreme Court in the matter of Minu Rout and Another v. Satya Pradyumna Mohapatra and Others4 to submit that only on the basis of spot map, contributory negligence cannot be proved. The Hon'ble Supreme Court in the aforementioned judgment while discussing the contributory negligence and spot map, has held thus :

"9. It is urged by the learned counsel for the appellants that the Tribunal, without there being any rebuttal evidence adduced by either the owner of the truck or his driver or any other independent witness to prove the alleged fact of contributory negligence on the part of the deceased, has erroneously recorded the finding of fact on the contentious issue No. 1 and held that there is contributory negligence on the part of the deceased. Therefore, it is urged by the learned counsel that the approach of the Tribunal in appreciating the evidence on record without there being any evidence on record adduced by the Insurance Company about the negligence of the deceased is 4 (2013) 10 SCC 695

erroneous. The Tribunal has placed reliance on the charge-sheet filed against both the deceased and the driver of the offending vehicle and has held that there was contributory negligence of the deceased which resulted in head on collision between the two vehicles. This fact is not established by producing any evidence by the Insurance Company availing the defence of the insured. PW-1 who was traveling in the car has narrated how the accident occurred. The other eye witnesses who have witnessed the accident have also deposed in favour of the appellants. They have stated that on account of rash and negligent driving of the driver of the offending truck, the accident took place. In fact, PW-2 has stated in his evidence that he was going to his village on his bicycle and the accident took place within a distance of 15 feet away from him.

Two other persons who have witnessed the accident were examined in the case in support of the claim of the appellants. It is urged in their evidence that they had helped the injured persons by shifting them to the Jajpur Hospital. PW-3, who is a betel shop owner, whose shop is situated near the place of accident, has stated in his evidence that there were six persons in the car and that he was not examined by the police. PW-4 deposed that he had seen the accident from a little distance from market

where 10 to 20 persons were present at that time. He has stated in his evidence that the truck was in a high speed and there were six persons inside the car who sustained injuries. The driver of the car sustained grievous injuries and was conscious when he was taken to Jajpur Hospital on a trekker and later succumbed to injuries. The evidence of this eye witness has not been properly considered both by the Tribunal and the High Court, while recording the finding on the relevant contentious issue No.1. Therefore, it is submitted that the findings recorded on the issue No.1 by the Tribunal is erroneous in law, and the same concurred with by the High court without reappreciating the evidence on record, and therefore, are liable to be set aside."

21.

Further, in the matter of Jiju Kuruvila and others v. Kunjujamma Mohan and others5, the Hon'ble Supreme Court has again considered the issue with regard to contributory negligence based on the scene mahazar/spot map and held thus : "18. Three witnesses, PW 1 to PW 3 deposed before the Tribunal. Parties placed documentary evidence, Ext. A-1 to Ext. A-8, Exts. B-1 and B-2. On behalf of the claimants, they relied on the oral evidence and documentary evidence to show rash and negligent driving on the part of the bus 5 (2013) 9 SCC 166

driver. On behalf of the Insurance Company, the counsel relied on Ext.-B2 "Scene Mahazar" and Ext. A-5, postmortem report to suggest negligence on the part of the deceased.

19. The High Court based on Ext. B-2 "scene mahazar" and Ext. A-5, post-mortem report held that there was also negligence on the part of the deceased as well.

20. On hearing the parties and perusal of record, the following facts emerge:

20.1 The owner of the vehicle Kunjujamma Mohan and the driver of the bus, P.C.

Kurian who were the first and third respondents before the Tribunal and High Court, had not denied the allegation that the accident occurred due to rash and negligent driving on the part of the bus driver.

20.2. PW 3, an independent eyewitness was accompanying the deceased during the journey on the fateful day. He stated that the bus coming from the opposite direction hit the car driven by the deceased and the accident occurred due to rash and negligent driving of the bus driver.

20.3. Ext. A-1, FIR registered by Pampady Police against the bus driver, P.C. Kurian, under Sections 279, 337 and 304-A IPC shows that the accident occurred due to rash and negligent driving on the part of the

bus driver. After investigation, the police submitted a charge-sheet (Ext. A-4) against the bus driver under Sections 279, 337 and 304-A IPC with specific allegation that the bus driver caused the death of Joy Kuruvila due to rash and negligent driving of the bus on 16-4-1990 at 4.50 p.m. In view of the direct evidence, the Tribunal and the High Court held that the accident was occurred due to rash and negligent driving on the part of the bus driver.

20.4. There is no evidence on record to suggest any negligence on the part of the deceased. Ext. B-2, "scene mahazar" also does not suggest any rash and negligent driving on the part of the deceased.

20.5. The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc.

depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the

driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual."

22.

If the facts of the case are considered in the light of aforementioned rulings of Hon'ble Supreme Court, in the case at hand, crime was registered against the driver of offending truck for the offence punishable under Sections 279, 337 and 304A of the IPC and after completion of investigation, final report (Ex.P/1) was filed against non-applicant No.4 for the offence punishable under Sections 279, 337, 338 and 304A of IPC for rash and negligent driving of offending truck.

23.

The claimants in their support have examined Smt. Manita Jain (Begani) as AW-1, Smt. Babita Jain (Begani). Smt. Manita Jain (Begani) (AW-1) in her evidence stated that the accident took place on account of negligence on the part of driver of offending truck, which she saw while sitting in another vehicle behind the maruti car. Smt. Babita Jain (Begani) (AW-2) also narrated that the accident took place due to rash and negligent driving of the driver of offending truck.

24.

The driver and owner of offending truck have chosen not to appear before learned Claims Tribunal. There was no evidence available on record on behalf of non-applicants to prove that there was contributory negligence on the part of the deceased (driver of maruti car) except the spot map (Ex.P/3), which shows only the

position of the vehicle. As held by Hon'ble Supreme Court that mere position of the vehicle will not be sufficient to proof the contributory negligence on the part of one of the drivers of the vehicles involved in the accident. Non-applicants have not placed any other evidence before learned Claims Tribunal even after remand of the case. Subsequent to remand of the case, the issue of contributory negligence was decided by Hon'ble Supreme Court in the aforementioned two judgments dealing with the issue considering the spot map only for deciding the contributory negligence and held that the spot map only cannot be taken as evidence to arrive at a conclusion and deciding the issue of contributory negligence.

25.

In the aforementioned facts and circumstances of the case, particularly, looking to the criminal case registered against the driver of offending truck stating him to be rash and negligent in driving the offending truck and also considering the law laid down by Hon'ble Supreme Court in this regard, learned Claims Tribunal erred in recording a finding that there was contributory negligence on the part of the deceased (driver of maruti car) to the extent of 50%. The finding of contributory negligence is not sustainable and it is hereby set aside.

26.

As we have set aside the finding recorded by the learned Claims Tribunal with regard to contributory negligence on the part of the deceased (driver of maruti car) which was insured by the

appellant/Insurance Company in MAC No.51 of 2014, we are not dealing with the grounds raised by appellant in MAC No.51 of 2014 because their grievance is only with respect to imposition of the liability to satisfy the amount of compensation to the extent of 50% on account of the contributory negligence on the part of deceased himself.

27.

In the result, both the appeals are allowed in part and the finding recorded by learned Claims Tribunal that the deceased (driver of maruti car) is liable for contributory negligence to the extent of 50% is hereby set aside. We hold that the accident is on account of rash and negligent driving of non-applicant No.4/driver of offending truck. The liability to satisfy the amount of compensation as calculated in preceding paragraphs will be upon non-applicants No.3 to 5 i.e. driver, owner and insurer of offending truck. 28.

Now appellants/claimants will be entitled for a total sum of Rs.19,10,355/- as compensation and the liability to satisfy the amount of compensation will be upon the respondents No. 3 to 5 in MAC No.1194 of 2013/non-applicants No. 3 to 5 in claim case. The aforementioned amount of compensation will carry interest at the rate of 6% per annum from the date of filing of the claim application till its realization. Other conditions imposed by learned Claims Tribunal shall remain intact.

Sd/- Sd/- (P. R. Ramachandra Menon) (Parth Prateem Sahu) Chief Justice Judge