National Insurance Company Ltd v. National Insurance Company Ltd

Smt. Saroj Rani and others Versus (4) FAO No.4845 of 2005 ........Appellant .......Respondents National Insurance Company Ltd., Regional Office II, S.C.O. 3337- 340, Sector 35-B, Chandigarh through its Assistant Administrative Officer. Smt. Mamta Devi and others Versus (5) FAO No.4846 of 2005 ........Appellant .......Respondents National Insurance Company Ltd., Regional Office II, S.C.O. 3337- 340, Sector 35-B, Chandigarh through its Assistant Administrative Officer. Balinder alias Balvinder and others Versus ........Appellant .......Respondents FAO Nos.4842 to 4849 of 2005 -2- (6) FAO No.4847 of 2005 National Insurance Company Ltd., Regional Office II, S.C.O. 3337- 340, Sector 35-B, Chandigarh through its Assistant Administrative Officer. Gurdev Singh and others Versus (7) FAO No.4848 of 2005 ........Appellant .......Respondents National Insurance Company Ltd., Regional Office II, S.C.O. 3337- 340, Sector 35-B, Chandigarh through its Assistant Administrative Officer. Versus ........Appellant Mai Lal and others (8) FAO No.4849 of 2005 .......Respondents National Insurance Company Ltd., Regional Office II, S.C.O. 3337- 340, Sector 35-B, Chandigarh through its Assistant Administrative Officer. ........Appellant Smt. Khazani Devi and others (9) FAO No.759 of 2006 Smt. Khazani Devi and others Versus Versus Rajinder Singh and others (10) FAO No.2575 of 2006 .......Respondents ........Appellants .......Respondents Manoj Kumar ........Appellant Rajinder Singh and others Versus .......Respondents FAO Nos.4842 to 4849 of 2005 -3- (11) FAO No.2576 of 2006 Chhanno Devi ........Appellant Rajinder Singh and others Versus .......Respondents CORAM:- HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Vivek Singal, Advocate for the appellant(s). Mr. Kamal Maur, Advocate for respondent No.1. Mr. Surender Deswal, Advocate for driver and owner. Mr. Arvind Bansal, Advocate for the claimant(s). ****** K.KANNAN, J. (ORAL)

1. Eight cases are at the instance of Insurance Company questioning liability and quantum and three cases are at the instance of the claimants. Amongst the case of the claimants, only Appeal No.759 of 2006 is presented through the counsel. There is no representation for the counsel for Appeal Nos.2575 and 2576 of

2006. The said appeals are dismissed for default. The cases arise for consideration only as regards the remaining cases.

2. The Insurance Company had the benefit of defence under Section 170 of the Motor Vehicles Act to contend that insured vehicle was a trolley and it had been parked on the road when the driver of the Jeep dashed against the trolley from behind at about 10:30 P.M. and brought harm upon to himself and all the passengers in the jeep FAO Nos.4842 to 4849 of 2005 -4- succumbed to fatal injuries with only one to survive. The trolley had been wrongly parked in middle of the road and found the driver and the owner of the trolley to be responsible for the accident and provided for the award in favour of the claimants against the insurer of the trolley. As a matter of fact, the tractor attached to the trolley, insurance for both of which had been taken, had been temporarily detached and it was in the evidence through the driver of the tractor that had been some disrepair to the tractor and, therefore, he was driving away the vehicle for having the defect rectified leaving the trolley in the katcha portion of the road. This evidence of the driver was not accepted by the Tribunal, which while making the award against the insurer, found that the evidence given by PW-3 that there was an indicator glowing at the back of the trolley could not be true for without a battery, especially when this trolley had been detached from the tractor, there could not be a light glowing. The accident was, therefore, held to be the result of negligence of the driver in leaving the vehicle in a dangerous position.

3. In my view, the Tribunal was not justified in casting the entire liability on the driver of the tractor. It must be remembered that the jeep dashed against a stationary vehicle from behind. There was evidence of the driver himself that the vehicle was not at the middle of the road but it was parked in the katcha portion. Even if there had been some negligence in the parking of the vehicle without properly securing some barrier around the stationary vehicle, a collision from the rear side of the vehicle could never be taken to be wholly by the person, who had caused the vehicle to be stationary. In this case, the Tribunal was error in reasoning that without a tractor being attached FAO Nos.4842 to 4849 of 2005 -5- and a source of power of battery there could not be light or indicator from the rear side of the trolley. It held that there was no evidence that there was any indicator glowing at rear side of the trolley. There was actually such evidence but the Tribunal thought it was not possible. Even without the source of power, a reflector duly attached would throw back light in the night when there was head light from the jeep itself. If there was no evidence at all regarding the indicator for the trolley, then perhaps it would be possible to say that the vehicle had been parked without sufficient care and it had been responsible in a larger measure for the accident. On the other hand, if there had been some evidence that there was an indicator glowing on the rear side of the trolley, I would only take that the witness was merely talking about a reflector and this is the only way to assess the evidence given by the witness. I will cast an equal responsibility for the driver of the jeep in dashing against a stationary trolley and apportion the liability of the accident as 50:50 and vacate the finding of the Tribunal that the owner and the insurer of the trolley are wholly responsible to answer the claim of the claimants. There shall be consequently a partial abatement of claim against the insurer for the trolley to an extent of 50%.

4. The deceased was himself driver of the vehicle. He was an agriculturist having 3 ½ acres of land and the claimants were the wife, mother, brother and sister. The evidence was given to the effect that he was doing dairy farming also. The Tribunal took the extent of dependence at Rs.1500/- and provided for multiplier of 16. Learned counsel appearing for the claimants would contend that the Tribunal while passing the award was in error in declining any award in favour FAO Nos.4842 to 4849 of 2005 -6- of the minor brother and sister. The father of the deceased had already died and as the eldest member, he was supporting the family consisting of his wife, mother and the minor siblings. I am prepared to accept the contention that under the facts and circumstances in the light of such evidence, the brother and sister would have also been immediately affected by the death of their brother. However, if a compensation is determined depending on the income and the age of the deceased, the presence of the brother and sister will have a bearing only in the matter of apportionment and will not have any ramification on the over all compensation that is determined. I would take the managerial skills of the deceased for obtaining income from his agricultural land and dairy farming to extent of Rs.3500/- per month in the manner provided by the Hon'ble Supreme Court in State of Haryana Versus Jasbir Singh, 2003(7) SCC 484 . In that case, the Hon'ble Supreme Court took the value of the managerial services of the agricultural land at Rs.3000/- per month. However, in this case he had given evidence of another source of income namely of dairy farming also and, therefore, I would take the income of Rs.3500/- per month. I would provide 1/4th deduction for his own personal expenses and would adopt a multiplier of 18 i.e. Rs.5,67,000/-. I will provide Rs.10,000/- towards loss to the estate and another sum of Rs.2,500/- for funeral expenses. In all the total sum payable will be Rs.5,79,000/-. I will cast an abatement of 50% of the same and take the amount of compensation payable at Rs.2,89,750/-, which is less than even what has already been awarded by the Tribunal. I find no scope for enhancement and the award passed by the Tribunal stands confirmed. FAO Nos.4842 to 4849 of 2005 -7-

5. The appeal filed by the claimant in FAO No.759 of 2006 seeking for enhancement is dismissed. The amount of compensation which is awarded for the mother shall be taken as an amount, which is payable for the mother, brother and the sister. The appeals filed by the Insurance Company are partly allowed, reducing its liability upto 50% of the respective awards passed in each case. October 28, 2010 Gagan (K.KANNAN) JUDGE