NATIONAL INSURANCE CO. LTD v. HARMAN SINGH DHANOA AND OTHERS
Case Details
FAO-263-2014 (O&M) with XOBJC-50-CII-2014 (O&M) 1 106 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO-263-2014 (O&M) with XOBJC-50-CII-2014(O&M) Reserved on: 05.12.2024 Pronounced on: 20.01.2025 NATIONAL INSURANCE CO. LTD. ... Appellant Versus HARMAN SINGH DHANOA AND OTHERS ...Respondents CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA Present: - Mr. Gopal Mittal, Advocate for the appellant/Insurance company. Mr. Ashwani Arora, Advocate, for the respondent no.1/cross-objector. HARKESH MANUJA, J. **** [1]. By way of present appeal filed at the instance of Insurance Company, prayer has been made for reduction towards the amount of compensation while impugning the award dated 01.10.2013 passed by learned Motor Accident Claims Tribunal, S.A.S Nagar (Mohali) (hereinafter referred to as “Tribunal”), whereby, Rs.70,97,000/- along with interest @ 6% per annum was awarded as compensation to respondent no.1/claimant. In this appeal, cross objections under Order 41 Rule 22 read with Section 151 CPC have also been filed at the instance of respondent No.1/cross- objector seeking enhancement/ modification of the award passed by the Tribunal. Brief Facts [2]. Respondent no.1, Harman Singh Dhanoa, filed claim petition before the learned Tribunal, praying for grant of compensation to the tune of Rs.1,00,00,000/- on account of injuries suffered by him in a motor TEJWINDER SINGH 2025.01.29 10:10 I attest to the accuracy and integrity of this document FAO-263-2014 (O&M) with XOBJC-50-CII-2014 (O&M) 2 vehicular accident which took place on 17.08.2010 while alleging rash and negligent driving by respondent No.2/driver. [3]. After going through the pleadings and upon evaluating the evidence led by both the parties, learned Tribunal arrived at a conclusion that the accident occurred on account of rash and negligent driving of respondent No.2/driver; holding the appellant and respondents no.2 and 3 jointly and severally liable and awarded compensation in the following manner: - Nature Sr.No . Amount in Rupees 1. 2. 3. 4. 5. 6. 7. 8. Loss of income due to functional Disability @ 100% Rs.54,50,544/- Pain and Suffering Rs.1,00,000/- Loss of Marriage Prospects Rs.2,00,000/- Medical Expenses Rs.66,112/- Transportation Attendant charges Special diet Rs.1,00,000/- Rs.8,64,000/- Rs.1,00,000/- Physiotherapy charges Rs.2,16,000/- TOTAL: Rs.70,96,656/- (Rs.70,97,000/- rounded of) [4]. Being aggrieved against the award dated 01.10.2013, the present appeal was preferred by the appellant/Insurance Company, seeking reduction of compensation; whereas the cross objections were filed by respondent No.1/cross-objector, praying for enhancement of compensation. TEJWINDER SINGH 2025.01.29 10:10 I attest to the accuracy and integrity of this document FAO-263-2014 (O&M) with XOBJC-50-CII-2014 (O&M) 3 Arguments [5]. Learned counsel for the appellant/Insurance Company submitted that in facts and circumstances of the present case, it was clearly a case of contributory negligence as the claimant-respondent No.1 was driving the two-wheeler without wearing a helmet. To buttress his arguments, he referred to the testimony of Dr. Rajinder Chhabra, Dept of Neuro Surgery, PGI Chandigarh PW-3, who examined the claimant in the hospital, and in cross-examination stated that as per the records injured was not wearing helmet at the time of accident and had he been wearing the same while riding the bike, he would not have suffered injuries to this
Legal Reasoning
"13. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the TEJWINDER SINGH 2025.01.29 10:10 I attest to the accuracy and integrity of this document FAO-263-2014 (O&M) with XOBJC-50-CII-2014 (O&M) 6 most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194C inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motor cycle............” 7. In the present case, there is no such evidence of contributory negligence except fact of three riders on the motor cycle and of not wearing helmet by the deceased. Therefore, in view of the enunciation of law, we find that the High Court was not justified TEJWINDER SINGH 2025.01.29 10:10 I attest to the accuracy and integrity of this document FAO-263-2014 (O&M) with XOBJC-50-CII-2014 (O&M) 7 in deducting 30% of the amount of compensation assessed by the Tribunal for the reason that the deceased was triple riding the Motor Cycle or was not wearing a helmet. The violation of rules for driving a motor vehicle is not a ground to deduct the amount of compensation awarded unless there is proof of either the accident could have been averted or the impact could have been minimized.” In view of the exposition of law discussed as above, this Court in its humble opinion, holds that the Tribunal rightly held that no case for contributory negligence was made out in present facts and thus, the Tribunal’s Award requires no interference in this regard. [9]. The next argument, that the conveyance allowance should have been deducted from the gross salary of the claimant, was answered by the Hon’ble Apex Court in the case of “National Insurance Co. Ltd. v. Nalini” reported as 2024 SCC OnLine SC 2252, wherein it was held that allowances under the heads of transport allowance, house rent allowance, provident fund loan, provident fund and special allowance ought to be added while considering the basic salary of victim/deceased to arrive at the dependency factor. Relevant para’s thereof are reproduced hereunder:- “2. The aforesaid aspect is no longer res integra inasmuch as a three Judges Bench of this Court in Vijay Kumar Rastogi v. U.P. SRTC has clearly held as follows:- “11. Strikingly, the High Court noted the taxable income disclosed in tax return of the appellant for the relevant period as Rs. 77,480/- (rounded off) and tax deduction of Rs. 4,496/-, yet proceeded to hold that the net income of the appellant has been rightly taken into consideration by the Tribunal. It is unfathomable that the High Court, despite having accepted the claim of the appellant founded on his tax return for the relevant period, disclosing the taxable income of the appellant as Rs. TEJWINDER SINGH 2025.01.29 10:10 I attest to the accuracy and integrity of this document FAO-263-2014 (O&M) with XOBJC-50-CII-2014 (O&M) 8 77,480/- (rounded off) and deduction of tax of Rs. 4,496/- could have affirmed the conclusion of the Tribunal that the net annual income of the appellant was Rs. 44,511/-. It ought to have reckoned the taxable income for computing the head towards loss of income. This, in our opinion, is the manifest error committed by the High Court. The appellant is justified in relying upon the decisions of this Court which have taken the view that loss of taxable earning should be reckoned for the purpose of determining just compensation as enunciated in National Insurance Co. Ltd. v. Indira Srivastava, which has been Insurance Co. Ltd. v. Jashuben in Oriental followed and Kavita v. Deepak. It has been held that the “income” should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of income tax or professional tax, although some elements thereof may, or may not be taxable due to the exemption conferred thereupon under the statute.” 3. It is apparent from the observations made in the aforesaid decision that the emoluments and the benefits accruing to the deceased under various heads for the purposes of computation of loss of income, which are described by learned counsel for the petitioner-Insurance Company as personal to him to arrive at the dependency factor, ought to be included irrespective of whether they are taxable or not.” On the aspect of enhancement of compensation Assessment under “loss of income and future income” [10]. To prove the case, Capt. Baldev Singh who happened to be the grandfather of respondent No.1 tendered in evidence his affidavit as Ex.PW2/A; copy of medical slips as Ex.P36 to Ex.P74; Ex.P17 & Ex.P18 as copies of discharge summaries and follow-up cards of PGI Hospital, TEJWINDER SINGH 2025.01.29 10:10 I attest to the accuracy and integrity of this document FAO-263-2014 (O&M) with XOBJC-50-CII-2014 (O&M) 9 Chandigarh, Ex.P25 to Ex.P29 as discharge slips of Command Hospital (WC), Chandi Mandir, and disability certificate as Ex.P79. [10.1]. In the present case, injured/claimant joined as Junior Engineer (CWD) in grade SG-1, in the supervisory cadre in TPI Mohali in the year 2007 vide Ex.P1; Ex.P-2 being supplementary terms of service; Ex.P-3 letter dated 22.03.2008 vide which claimant was re-designated as Deputy Engineer (CDW) from 01.01.2008 onwards; Ex.P-4, the appreciation letter dated 17.08.2009; Ex.P-5 granting him site allowance of Rs.1500/- per month; vide Ex.P-6 letter dated 01.01.2010, considering the performance his salary was increased effectively from 01.01.2010 onwards from Rs.1,57,359/- to Rs. 1,81,700/- per annum (Ex.P-7); his salary and allowances were again revised vide letter of appreciation dated 21.07.2010 w.e.f. 01.07.2010 onwards (Ex.P-8) from Rs.1,81,700/- to Rs. 2,01,872/- per annum (Ex.P-9); Ex.P-12 claimant’s income tax return for the assessment year 2011-12 filed on 20.05.2011 showing his annual salary of Rs. 1,11,758/- and Ex.P-13 being salary slip dated 22.11.2013 showing his salary as Rs.14,100/- per month. Considering the aforementioned exhibits the income of the claimant was duly proved. [10.2]. Now the question arises whether the income assessment was to take note of the future earning capacity of his/her colleagues. Rakesh Vashisht, Senior Officer, Tube Products of India, Mohali (PW-1) in his testimony categorically stated that the claimant was selected on the basis of campus selection from Chandigarh College of Engineering, Sector 26 Chandigarh and was ranked as No.1 in selection process. He further deposed that his colleagues were presently working in the organization and were getting Rs. 3 lacs per annum whereby two of his colleagues who joined L & T Limited Company were getting package of Rs. 8 Lacs per TEJWINDER SINGH 2025.01.29 10:10 I attest to the accuracy and integrity of this document FAO-263-2014 (O&M) with XOBJC-50-CII-2014 (O&M) 10 annum. In such circumstances, reference can be made to the judgment of the Hon’ble Apex Court in case of “S. Vasanthi. & Anr. vs M/s Adhiparasakthi Engg. College and Another”, reported as 2022 (4) R.C.R. (Civil) 837, wherein it was held that in case of death of a student income assessment could be made at par with the future earning capacity of his/her classmates. Relevant excerpt thereof is reproduced hereunder:- “11. It could thus be seen that the deceased S. Sathiyanarayan was twenty-three years of age at the time of the accident. He was a qualified engineering graduate and was pursuing an MBA degree at SRM University to further his professional capabilities. In view of the specific averments made in the affidavit as to the employment prospects of the classmates of the deceased S. Sathiyanarayan and also his young age at the time of the accident, we are of the considered view that the Tribunal and the High Court have erred in not giving due weightage to the same. Had the deceased S. Sathiyanarayan not met with the unfortunate accident, he would have surely drawn a salary equivalent to that of his classmates or at least an amount near the said amount……” Though the case of S. Vasanthi (supra) relates to an accidental death case but its analogy could be safely supplanted to the facts and circumstances of the present case considering the fact that in the present case, the injured/claimant suffered injuries which rendered him 100% permanently disabled including total blindness, deafness and reduced his I.Q to below 20. Further, the Hon’ble Apex Court in “Arvind Kumar Mishra v. New India Assurance Co. Ltd.”, reported as (2010) 10 SCC 254, while considering the notional income of a student held as under:- “14. On completion of Bachelor of Engineering (Mechanical) from the prestigious institute like BIT, it can TEJWINDER SINGH 2025.01.29 10:10 I attest to the accuracy and integrity of this document FAO-263-2014 (O&M) with XOBJC-50-CII-2014 (O&M) 11 be reasonably assumed that he would have got a good job. The appellant has stated in his evidence that in the campus interview he was selected by Tata as well as Reliance Industries and was offered pay package of Rs.3,50,000 per annum. Even if that is not accepted for want of any evidence in support thereof, there would not have been any difficulty for him in getting some decent job in the private sector. Had he decided to join government service and got selected, he would have been put in the pay scale for Assistant Engineer and would have atleast earned Rs. 60,000 per annum. Wherever he joined, he had a fair chance of some promotion and remote chance of some high position. But uncertainties of life cannot be ignored taking relevant factors into consideration……” Therefore, in view of the discussion made hereinabove, considering that the claimant had diploma in Mechanical Engineering and was pursuing B. Tech degree from Punjab Technical University, Jalandhar and was in final semester when he met with an accident which led him being bed ridden, thus, the income of the injured/claimant is cautiously assessed as Rs.5,00,000/- per annum (Rs. 1370/- per day rounded off) [10.3]. In the present case perusal of record showed that injured/claimant was taken to PGI, Hospital, Chandigarh in emergency on 17.08.2010, where he was operated till 18.8.2010 and was shifted to ICU and remained there till 10.09.2010 (25 days). After his discharge on 10.09.2010, claimant/respondent No.1 was taken to Command Hospital (WC), Chandi Mandir on the same day from where he was discharged on 31.12.2010 (113 days). He was again admitted in Command Hospital (WC), Chandi Mandir, on 29.01.2011 and was discharged on 31.01.2011 (03 days); admitted to PGI, Chandigarh on 06.06.2011 and discharged on TEJWINDER SINGH 2025.01.29 10:10 I attest to the accuracy and integrity of this document FAO-263-2014 (O&M) with XOBJC-50-CII-2014 (O&M) 12 08.06.2011 (02 days); admitted to Command Hospital (WC), Chandi Mandir from 28.06.2011 to 01.07.2011 (04 days) and then from 05.05.2012 to 30.05.2012 (26 days). From cumulative analysis of copy of medical slips (Ex.P36 to Ex.P74) and discharge summaries (Ex.P17, Ex.P18, Ex.P25 to Ex.P29) respectively, it is evident that respondent no.1 remained admitted as indoor patient in PGI, Chandigarh as well as Command Hospital (WC), Chandi Mandir after accident for 173 days, therefore, compensation under the head of loss of income during hospitalization needs to be assessed as Rs. 2,37,010/- (Rs. 1370 X 173). Further, this Court in its humble opinion and in the facts of the present case, while relying upon the judgment rendered by the Hon’ble Supreme Court in case of “National Insurance Company Ltd. Vs. Pranay Sethi and others”, reported as 2017 (4) R.C.R (Civil) 1009 conservatively assesses the loss of future income by applying multiplier of 18 as Rs.1,35,00,000/- (Rs. 5,00,000 + 50%= 7,50,000 X 18). Assessment under “other pecuniary heads” [10.4] Upon perusal of copy of medical bills and discharge summaries and the averments made in affidavit of Capt. Baldev Singh PW-2, it is evident that respondent No.1 was firstly taken from place of accident to Postgraduate Institute of Medical Education and Research, Chandigarh and later to Command Hospital (WC), Chandi Mandir, where he continued his follow up treatment, therefore, compensation under the head of transportation is assessed as Rs. 2,00,000/-. [10.5] Further, Dr. Rajesh Chhabra, Department of Neuro Surgery, PGI Chandigarh, while appearing as PW3 deposed that respondent no.1 would require attendant throughout his life while having become permanently disabled to the extent of 100% in relation of whole body due to TEJWINDER SINGH 2025.01.29 10:10 I attest to the accuracy and integrity of this document FAO-263-2014 (O&M) with XOBJC-50-CII-2014 (O&M) 13 profound mental retardation. Admittedly, respondent no.1 remained in hospital for 173 days and would have definitely required attendant and nutritious diet during that period and even after discharge from the hospital, as evident from deposition of Dr. Rajesh Chhabra (PW3), therefore, compensation under the head of nutrious diet is assessed as Rs.2,00,000/- . For assessing the attendant charges reliance can be placed upon the judgment rendered by the Hon’ble Apex Court in case of “Kajal v. Jagdish Chand”, reported as (2020) 4 SCC 413, wherein it was held that in cases where attendant is required even after discharge from the hospital, multiplier method could be used for making the assessment. Relevant excerpt thereof is reproduced hereunder: - “22. The attendant charges have been awarded by the High Court @ Rs. 2,500/- per month for 44 years, which works out to Rs. 13,20,000/-. Unfortunately, this system is not a proper system. Multiplier system is used to balance out various factors. When compensation is awarded in lump sum, various factors are taken into consideration. When compensation is paid in lump sum, this Court has always followed the multiplier system. The multiplier system should be followed not only for determining the compensation on account of loss of income but also for determining the attendant charges etc. This system was recognised by this Court in Gobald Motor Service Ltd. v. R.M.K. Veluswami, AIR 1962 Supreme Court 1. The multiplier system factors in the inflation rate, the rate of interest payable on the lump sum award, the longevity of the claimant, and also other issues such as the uncertainties of life. Out of all the various alternative methods, the multiplier method has been recognised as the most realistic and reasonable method. It ensures better justice between the parties and thus results in award of `just compensation' within the meaning of the Act.” TEJWINDER SINGH 2025.01.29 10:10 I attest to the accuracy and integrity of this document FAO-263-2014 (O&M) with XOBJC-50-CII-2014 (O&M) 14 Similarly, the Hon’ble Apex Court in “Abhimanyu Partap Singh v. Namita Sekhon, reported as (2022) 8 SCC 489 while keeping in mind the nature of injuries and growing age of the injured granted two attendants for 12 hours each as he required all time attendants for his daily routine works. Relevant para No. 23 is reproduced herewith:- “23. In the head of medical expenses, the MACT or the High Court has not awarded any compensation presumably because the mother of the claimant, who was minor at the time of accident, may have claimed the amount of medical expenses being an IAS officer. But now the claimant has become major, and looking to the nature of injuries, future medical expenses that includes the attendant charges, use of diapers due to loss of urination senses is required to be calculated including future medical expenses. The Tribunal awarded Rs 1,92,000 in the head of attendant charges @ Rs 1000 p.m. While the High Court proceeded on the premises that the rate of the attendant charges is variable after every five years, however, the Court calculated the amount @ Rs 2000 thereafter @ Rs 4000 p.m. for a period of 20 years and accordingly determined Rs 9,00,000 making enhancement of Rs 7,08,000 in the said head. As discussed, if we apply the multiplier method and in view of the judgment of Kajal , we accept the rate of attendant charges at Rs 5000 p.m. for 12 hours, looking to the nature of injuries and disability the claimant is required two attendants at least within 24 hours then the expenses in the head of attendant charges comes to Rs 10,000 p.m. If we apply the multiplier of 18, the amount comes to Rs 21,60,000.” Therefore, in the facts in hand compensation for attendant charges, by taking Rs. 5,000/- p.m./per attendant for 12 hours and also while looking at the nature of injuries, claimant/respondent No.1 requiring two attendants costing Rs.10,000/- per month, and by applying multiplier of 18 the same is assessed as Rs. 21,60,000/- (5000 (each) X 12 X 18). TEJWINDER SINGH 2025.01.29 10:10 I attest to the accuracy and integrity of this document FAO-263-2014 (O&M) with XOBJC-50-CII-2014 (O&M) 15 [10.6] Similarly, for medical expense under the head of physiotherapy, the Tribunal granted Rs. 1000/- per month which is on the lower side and thus the same needs to be reassessed. These days the physiotherapist would normally charge Rs. 200 per hour, which monthly comes to Rs. 6000 per month and by applying multiplier of 18 the same comes to Rs. 12,96,000/- (6000 X 12 X 18). Assessment under ‘non-pecuniary heads’ [11]. In motor accident cases, determining the value of pain and suffering is a complex process which involves consideration of various factors and their subjective assessment. Unlike economic damages such as medical expenses or lost wages, which can be calculated based on objective evidence; damages on account of pain and suffering are more intangible and subjective. While no amount of compensation can alleviate the mental trauma and agony caused to the injured and loss to the future enjoyment of amenities of life, but societal balance could be maintained if some lumpsum amount could be awarded on account of permanent disability. The Hon’ble Apex Court in “K.S. Muralidhar v. R. Subbulakshmi” reported as 2024 SCC OnLine SC 3385 was pleased to held as under:- “15. Keeping in view the above-referred judgments, the injuries suffered, the ‘pain and suffering’ caused, and the life-long nature of the disability afflicted upon the claimant-appellant, and the statement of the Doctor as reproduced above, we find the request of the claimant-appellant to be justified and as such, award Rs. 15,00,000/- under the head ‘pain and suffering’, fully conscious of the fact that the prayer of the claimant-appellant for enhancement of compensation was by a sum of Rs. TEJWINDER SINGH 2025.01.29 10:10 I attest to the accuracy and integrity of this document FAO-263-2014 (O&M) with XOBJC-50-CII-2014 (O&M) 16 10,00,000/-, we find the compensation to be just, fair and reasonable at the amount so awarded.” Therefore, in the present case, respondent no.1 is held entitled for compensation to the tune of Rs.15,00,000/- on account of his permanent disability as well as “pain and sufferings” after placing reliance on K.S. Muralidhar’s case (supra). Further, considering the stigma associated with the amputation and disfigurement of body resulting into diminished marital prospects, respondent no.1 is held entitled for compensation to the tune of Rs.5,00,000/- on account of “loss of marriage prospects”. Conclusion [12]. In view of the discussion made hereinabove, respondent No.1/cross-objector shall be entitled for the grant of following compensation: - Sr.No. Nature Amount Rupees in 1. 2. 3. 4. 5. 6. 7. Loss of Income and Loss of future Income (2,37,010+1,35,00,000) Rs.1,37,37,010/- Pain and Suffering Rs.15,00,000/- Loss of Marriage Prospects Rs.5,00,000/- Transportation Nutritious Diet Rs.2,00,000/- Rs.2,00,000/- Attendant Charges Rs.21,60,000/- Physiotherapy Charges Rs.12,96,000/- Total Compensation Rs.1,95,93,010/- Amount Awarded by the Tribunal Rs.70,97,000/- Enhanced Amount Rs.1,24,96,010/- TEJWINDER SINGH 2025.01.29 10:10 I attest to the accuracy and integrity of this document FAO-263-2014 (O&M) with XOBJC-50-CII-2014 (O&M) 17 [13]. The grant of interest @ 6% per annum is not just in view of the facts and circumstances of the present case; rather as per the observations made by the Hon’ble Supreme Court in “Smt. Supe Dei and others Vs. National Insurance Company Limited and other”, reported as (2009) 4 SCC 513, approved in a subsequent judgment titled as “Puttamma and others Vs. K.L. Narayana Reddy and another”, reported as 2014 (1) RCR (Civil) 443, the interest is enhanced to 9% per annum on the amount of compensation awarded to the claimants from the date of institution of claim petition till its realization. Needless to mention here that the amount of compensation already paid to the claimant shall be deducted from the enhanced compensation. [14]. Accordingly, the appeal filed at the instance of Insurance Company is disposed of in above terms and the cross-objections filed at the instance of respondent No.1 are allowed with aforesaid modification of the award passed by the Tribunal. [15]. Pending miscellaneous application(s) if any, shall also stand
Arguments
extent. Therefore, it was submitted that respondent No. 1 being in violation of Section 129 of the Act sustained fatal injury on his head, thus, 20% contributory negligence should have been attributed to him and compensation to that extent was not to be paid to him. He further argued that the Tribunal erred in law while not deducting conveyance allowance from the gross salary as shown in the Income Tax Return for the year 2011-2012 as Ex-P12. Lastly, he argued that the Tribunal solely relied upon the undated documents exhibited as Ex-P7 and Ex-P9, showing the revised salary of the claimant while deciding the income of the claimant. Since there were various documents showing unalike income of the claimant, under such circumstances the same assessed by the Tribunal was on the higher side, thus, compensation awarded was liable to be reduced. [6]. Per contra, learned counsel for respondent No.1/injured submitted that merely not wearing of helmet or on account of violation of rules about driving of a motor vehicle, respondent No.1 was not to be made liable for contributory negligence or for deduction of amount of TEJWINDER SINGH 2025.01.29 10:10 I attest to the accuracy and integrity of this document FAO-263-2014 (O&M) with XOBJC-50-CII-2014 (O&M) 4 compensation awarded to him. He further relied upon the testimony of Captain Baldev Singh PW-2, grandfather of the claimant who in his cross examination deposed that his grandson was turbaned Sikh and was wearing one at the time of accident. He further submitted that the Tribunal assessed the income of the claimant on the lesser side as his colleagues were getting around Rs. 8 lacs per annum which was even confirmed by Rakesh Vashisht, Senior Officer, Tube Products of India PW-1, thus, it should have been assessed accordingly. He also submitted that considering the nature of his injuries, respondent no.1 would require minimum two attendants throughout his life and as such compensation was required to be assessed in this regard. Lastly, he concluded with the argument that compensation under conventional heads was on the lower side and thus, the impugned award be modified/enhanced. Discussion [7]. I have heard learned counsel for the parties, perused paper- book as well as records of the case. I find force in the arguments advanced by learned counsel for respondent no.1/cross-objector. Question of contributory negligence [8]. The first question which arose before this court was as to whether merely non wearing of helmet while driving a two wheeler would amount to contributory negligence. In this regard, learned Counsel for appellant/Insurance Company relied upon the judgment passed by this Court in the case of “The Oriental Insurance Company Limited Versus Dharambir & Ors”., FAO-2938 of 2018, wherein contributory negligence to the extent of 20% was attributed to the deceased for non-wearing of helmet. However, Ld. Counsel for respondent No.1/cross-objector heavily placed reliance on the testimony of grandfather of the claimant Capt. TEJWINDER SINGH 2025.01.29 10:10 I attest to the accuracy and integrity of this document FAO-263-2014 (O&M) with XOBJC-50-CII-2014 (O&M) 5 Baldev Singh PW-2, who specifically stated that his grandson was wearing turban at the time of accident and this fact even remained un- rebutted/uncountered during his further cross-examination and no cogent evidence in positive was produced to oppose the same. Even in the discharge slips of Command Hospital (WC), Chandi Mandir Ex.P25 to Ex.P29, the religion of the claimant was written as Sikh. In such circumstances, placing reliance on the decision rendered by the Hon’ble Apex Court in the case of “Anjana Narayan Kamble v. Branch Manager, Reliance General Insurance Company Limited” reported as 2023 ACJ 346, wherein it was held that there must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim, it can be safely recorded that no case of contributory negligence was made out against respondent No.1 merely on account of non-wearing of helmet at the time of accident especially in the absence of any positive evidence in this regard while driving the vehicle. Relevant excerpts thereof are reproduced hereunder:- “6. The Learned Counsel for the Appellant relied upon the judgement of this Court in Mohammed Siddique & Anr. v. National Insurance Company Limited & Others reported in (2020) 3 SCC 57, wherein this Court held that the deceased was negligent as 3 persons on a motor cycle could have added to the imbalance. It was held that motor cyclist may be violating the Motor Vehicle Act, 1988 for which the deceased may be liable to penalty but such violation by itself, cannot lead to a finding of contributory negligence. This court held:-
Decision
disposed of. January 20, 2025 Tejwinder ( HARKESH MANUJA ) JUDGE Whether speaking/reasoned Whether Reportable Yes/No Yes/No TEJWINDER SINGH 2025.01.29 10:10 I attest to the accuracy and integrity of this document