National Insurance Co Ltd vs. Puneet Bhatia & Ors

$~46
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 11.12.2023

+ MAC.APP. 774/2017 & CM APPL. 41950/2018, 50140/2018
NATIONAL INSURANCE CO LTD ..... Appellant
Through: Mr.Arihant Jain, Adv. for
Ms.Shantha Devi Raman, Adv.
versus

PUNEET BHATIA & ORS ..... Respondents
Through: Mr.Mayank Khurana, Mr.Aksh
Tomar, Advs. for R-1 to 3.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA

NAVIN CHAWLA, J. (ORAL)


1. This appeal has been filed challenging the Award dated
30.05.2017 (hereinafter referred to as the ‘Impugned Award’) passed
by the learned Motor Accident Claims Tribunal, North-East District,
Rohini Courts, Delhi (hereinafter referred to as the ‘Tribunal’) in
MACT No. 449998/2016, titled Puneet Bhatia & Ors. v. Prem Gaur
& Ors. .
2. The above Claim Petition had been registered on the Detailed
Accident Report (in short, ‘DAR’), which stated that on 19.02.2014 at
about 7:50 AM, the deceased Smt.Shalini Bhatia was going on a
scooty in front of the Ram Leela Ground, F-1U Block, Pitam Pura,
Delhi. She was hit by a Tempo bearing registration no. HR-27-J-0821
(hereinafter referred to as the ‘Offending Vehicle’), which was being
driven by the respondent no.4 herein in rash and negligent manner.
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She was rushed to the Santom Hospital, Prashant Vihar, Delhi, where
the doctors of the said hospital declared her as ‘brought dead’.

3. The respondent nos.4 and 5, that is, the driver and the owner of
the offending vehicle respectively, took a stand in their reply that no
accident took place with the offending vehicle, and that the deceased
got entangled with some electric wires that were lying on the road and
died due to the electric shock.
4. The learned Tribunal, on assessing the evidence led by the
parties, and, especially, relying upon the statement of Sh.Shajid
Salmani (PW-2), who is an alleged eye witness to the accident, held
that the offending vehicle was being driven in a rash and negligent
manner, leading to the accident in question, and the death of the
deceased. The learned Tribunal awarded a compensation of
Rs.79,88,000/- along with interest at the rate of 9% per annum, in
favour of the respondent nos.1 to 3 herein, that is, the claimants, on
the following heads:

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Issue of Negligence:
5. The first challenge of the appellant to the Impugned Award is
by contending that the learned Tribunal has erred in holding that the
accident had taken place due to the offending vehicle being driven in a
rash and negligent manner.
6. The learned counsel for the appellant contends that the PW-2
was an interested witness and, therefore, his testimony could not have
been relied upon by the learned Tribunal. He submits that there were
contradictions in his statement.
7. The above contentions of the appellant are refuted by the
learned counsel for the respondent nos.1 to 3, who in turn, submits
that even during the cross-examination of PW-2 no material
contradiction could be derived in his statement by the appellant or the
respondent nos.4 and 5.
8. I have considered the submissions of the learned counsels for
the parties.
9. PW-2, in his evidence by of an affidavit, had stated that on
19.02.2014 at about 7.45 A.M., he was going from his residence
towards the shop by his Bicycle, and when he reached Near Sarvodaya
Vidhyalaya, F-1 U-Block, Pitampura, Delhi, he saw the offending
vehicle loaded with Plastic Bales upto the height over and above of 6-
7 feet from body of tempo, coming from the opposite direction
alongside the Ram Leela Park. He further stated that the offending
vehicle was being driven at a very high speed and in a rash and
negligent manner. He stated that there were electric wires attached just
opposite the gate of Ram Leela Park towards the side of the school,
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with an iron pipe over the road. The plastic bales loaded in the
offending vehicle struck against the electric wires, as a result of which
the electric wires were broken and fell down on the deceased who was
driving her scooty. The deceased was trapped in the wires and
sustained a severe head injury. He stated that the accident had taken
place as the offending vehicle was overloaded with plastic bales
extended much beyond the body of the offending vehicle. He was
cross-examined by the learned counsel for the respondent nos.4 and 5,
wherein he maintained his stand. I also do not find any inconsistency
in his statement, or any material contradiction which may lead this
Court to, in any manner, doubt the testimony of PW-2.
10. Though the respondent no.4 herein also entered into the witness
box as R1W1, and stated that the offending vehicle did not hit the
scooty driven by the deceased, curiously, he did not state that the
electric wires did not break down due to the offending vehicle hitting
the same as it was overloaded. He, in fact, in his evidence by way of
an affidavit, admitted that the deceased died due to the falling of the
electric wires which struck the scooty of the deceased, resulting in her
suffering fatal injuries. In fact, he stated that it was the fault of the
organizer/decorator who had put the electric wires across the road.
11. Even the photographs of the offending vehicle clearly show that
the offending vehicle was overloaded with the Plastic Bales jutting out
over the body of the offending vehicle. In my opinion, the testimony
of PW-2 stands corroborated with these photographs and, in fact, the
stand of the respondent no.4 himself.
12. I, therefore, find no merit in the above challenge of the
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appellant. The same is, accordingly, rejected.
Deceased not having a driving license to drive a scooty:

13. The next challenge of the appellant to the Impugned Award is
by claiming that as the deceased was not having a valid driving
licence for a two-wheeler/scooty, contributory negligence should have
been attributed on her for the accident and compensation amount,
accordingly, reduced.
14. The learned counsel for the appellant submits that while the
deceased was holding a driving licence for driving a light motor
vehicle-non-transport, she did not have a valid and effective driving
licence to drive a Motor Cycle/Two-wheeler without gear.
15. Placing reliance on the judgment of this Court in HDFC Ergo
General Insurance Co. Ltd. v. Bindu Paswan & Anr ., Neutral
Citation No.2023/DHC/000993, he submits that the contributory
negligence of, at least, 15% should be attributed to the deceased.
16. On the other hand, the learned counsel for the respondent nos.1
to 3, placing reliance on the judgment of the Supreme Court in Sudhir
Kumar Rana v. Surinder Singh & Ors ., (2008) SCC OnLine SC 794,
submits that the mere fact of the deceased not having a valid driving
licence for a specific category of vehicle, would not be a proof of the
deceased driving her scooty in a rash and negligent manner and,
therefore, the deceased cannot be held guilty of contributory
negligence.
17. I have considered the submissions made by the learned counsels
for the parties.
18. In Sudhir Kumar Rana (supra), the Supreme Court rejecting
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submission akin to the one made by the appellant in the present case,
observed as under:
“9. If a person drives a vehicle without a
licence, he commits an offence. The same, by
itself, in our opinion, may not lead to a finding
of negligence as regards the accident. It has
been held by the courts below that it was the
driver of the mini-truck who was driving
rashly and negligently. It is one thing to say
that the appellant was not possessing any
licence but no finding of fact has been arrived
at that he was driving the two-wheeler rashly
and negligently. If he was not driving rashly
and negligently which contributed to the
accident, we fail to see as to how, only
because he was not having a licence, he would
be held to be guilty of contributory negligence.
10. The matter might have been different if by
reason of his rash and negligent driving, the
accident had taken place.”

19. In Bindu Paswan (supra), this Court was considering a case
where the insurance company was seeking a right to recover the
compensation paid to the Claimants therein from the owner of the
offending vehicle/a two wheeler, as the driver of offending vehicle
was not having a valid driving licence to drive the same. It was in
those facts that the Court held that merely because the driver of the
offending vehicle was holding a licence to drive a commercial
vehicle/light motor vehicle, he could not have been held by the
learned Tribunal to be authorised to drive a two wheeler as well, and
therefore, granted a right in favour of the Insurance Company therein
to recover the compensation from the owner of the Offending Vehicle.
The said judgment, therefore, will have no application to the facts of
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the present case, as the appellants have not been able to show that the
accident had taken place as the deceased was driving the scooty
without a valid driving license to drive a two wheeler or the accident
could have been prevented had the deceased been in possession of
such a licence.
20. In view of the judgment of the Supreme Court in Sudhir Kumar
Rana (supra), I find no merit in the challenge of the appellant. The
same is, accordingly, rejected.
Deceased not wearing a Helmet:
21. The learned counsel for the appellant further submits that the
deceased was not wearing a helmet at the time of the accident in
question. He submits that this itself contributed to the accident.
Placing reliance on the judgment of the Madras High Court in
Reliance General Insurance Co. Ltd. v. Manju & Ors. 2023 SCC
OnLine Mad 4142; and in Ramasami v. Shanmugam & Anr. 2019
SCC OnLine Mad 14285, he submits that contributory negligence of,
at least, 15% should have been fastened on the deceased for the
accident in question.
22. On the other hand, the learned counsel for the respondent nos.1
to 3, placing reliance on the testimony of PW-2, submits that the
deceased was indeed wearing the helmet. He submits that, therefore,
the plea of the appellant deserves to be rejected.
23. Placing reliance on the judgment of this Court in Vimla Devi &
Anr. v. Royal Sundaram All Ins. Co. Ltd. & Anr., Neutral Citation
No.2019:DHC:6698, he submits that even assuming that the deceased
was not wearing a helmet at the time of the accident, contributory
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negligence cannot be attributed to the deceased.
24. I have considered the submissions made by the learned counsels
for the parties.
25. Though PW-2, in his statement, had stated that at the time of the
accident, the deceased was wearing a helmet, in his statement under
Section 161 of the Code of Criminal Procedure, 1973, recorded by the
police, he had stated that the deceased was not wearing a helmet at the
time of the accident. Even the Seizure Report does not mention
recovery of a helmet at the site of the accident. In my view, therefore,
the mere statement of PW-2 that the deceased was wearing a helmet at
the time of the accident cannot be believed.
26. The question remains as to the effect of the deceased not
wearing a helmet.
27. In Vimla Devi (supra), this Court rejected a similar plea of
attribution of contributory negligence on the person/deceased for not
wearing a helmet while riding as a pillion rider on a two-wheeler, by
observing as under:
“4. The learned counsel for the respondents
submits that the deceased fully knew that the
mounting of three persons on a moving scooty
was impermissible under motor traffic rules.
The accident occurred in the middle of the
road. The pillion riders were not wearing
helmets, therefore, there appears to be
contributory negligence. The Court is of the
view that the aforesaid argument is untenable
because not wearing a helmet could at best be
a traffic offence and not necessarily be
regarded as contributing to the motor accident
itself. After an accident occurs, its
consequence depends upon the impact.....”
(Emphasis Supplied)
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28. Even though in Manju (supra) and in Ramasami (supra), the
Madras High Court has taken a view that non-wearing a helmet
justifies attribution of 10%/15% contributory negligence on the
deceased, I am bound by the above judgment of a Co-ordinate Bench
of this Court in Vimla Devi (supra).
29. Even otherwise, applying the ratio of the judgment of the
Supreme Court in Sudhir Kumar Rana (supra), I am also of the view
that, though not wearing a helmet would have magnified the injuries
suffered by the deceased, the same were caused by the accident in
question, where the cause of the accident was the overloading of the
offending vehicle which had led to the overhanging electric wires
being struck with the bales that were being carried in the Offending
Vehicle and the said wires falling over the deceased, entangling her
scooty and making her fell down. Non-wearing of the helmet by the
deceased, therefore, did not cause or contribute to the accident, though
had the deceased worn a helmet, the injuries suffered by the deceased
due to the accident may have been reduced (though this also remains
in the realm of conjecture!).
30. The above challenge of the appellant is, accordingly, rejected.
Income Tax Deduction:
31. The next challenge to the Impugned Award is on the ground
that the learned Tribunal has erred in not deducting the tax payable on
the income of the deceased for the purposes of determining the loss of
dependency.
32. The learned counsel for the respondent nos.1 to 3 does not
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dispute the above position in law.
33. The learned counsel for the appellant submits that on the
income of the deceased, she would have to pay tax of Rs.57,138/- per
annum.
34. Accordingly, the award of compensation on the head of loss of
dependency in favour of the respondent nos.1 to 3, shall stand
modified and reduced, as under:
Yearly Income of the Deceased: Rs.52,281 x 12 = Rs.6,27,372/-
Less: Tax payable : Rs.57,138/-
Total annual income of the deceased : Rs. 5,70,234/-
Compensation : - 5,70,234/- x 130/100 x 14 x 2/3 = Rs.69,18, 840/-
35. The Impugned Award shall stand modified to this extent.
Non-Pecuniary Heads:
36. The next challenge of the appellant to the Impugned Award is
on the ground of compensation granted under the non-pecuniary
heads.
37. The learned counsel for the appellant submits that the
compensation granted under the said heads is not in terms of the
judgment of the Supreme Court in National Insurance Company Ltd.
v. Pranay Sethi & Ors. (2017) 16 SCC 680.
38. The learned counsel for the respondent nos.1 to 3 is not in a
position to deny the above position in law.
39. Accordingly, the compensation payable to the respondent nos.1
to 3 on account of non-pecuniary heads, is re-assessed as under:
Funeral expenses: Rs.15,000/-
Loss of consortium (as the respondent no.1 re-married post the
death of the deceased only the children of the deceased would be
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entitled to compensation for Loss of consortium) : Rs.40,000/- x 2:
Rs. 80,000/-
Loss of estate: - Rs.15,000/-
40. The Impugned Award shall stand modified to this extent.
Rate of Interest:
41. The last challenge of the appellant to the Impugned Award is on
the ground that the learned Tribunal has erred in awarding interest at
the rate of 9% per annum in favour of the respondent nos.1 to 3.
42. The learned counsel for the appellant submits that keeping in
view the rate of interest as notified by the RBI at the time of the
accident, it should not have been more than 7% per annum.
43. I am unable to agree with the above contention of the appellant.
44. Section 171 of the Motor Vehicles Act, 1988 (hereinafter
referred to as the ‘Act’) empowers the Motor Accidents Claims
Tribunal to direct the payment of simple interest on the compensation
determined, at such rate and from such date, not earlier than the date
of making the claim, as it may specify in this behalf. A discretion is
therefore, vested with the learned Tribunal to award the rate of
interest. It need not completely match with the rate of interest as may
be notified by the Reserve Bank of India. There are other
circumstances as well which the learned Tribunal has to take into
account. This Court, in National Insurance Co. Ltd vs Yad Ram &
Ors., 2023 SCC OnLine Del 1849, has held as under:-

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45. The Court has therefore, held that the rate of interest notified by
the Reserve Bank of India is only one of the considerations that must
weigh with the learned Tribunal while determining the rate of interest;
the other considerations being the duration and pendency of the Claim
Petition, and other surrounding circumstances, which would
cumulatively make the award of rate of interest to appear as
reasonable.
46. In the present case, the accident had taken place on 19.02.2014,
whereas the Impugned Award has been passed only on 30.05.2017. In
my view, the rate of interest awarded by the learned Tribunal cannot
be said to be unreasonable so as to warrant any interference from this
Court.
47. The challenge of the appellant is, accordingly, rejected.
CONCLUSION:
48. In terms of the interim order dated 29.08.2017, the appellant has
deposited the entire awarded amount with interest with the learned
Tribunal, 40% whereof was directed to be released in favour of the
respondent nos.1 to 3. I am informed that the respondent nos.1 to 3
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have still not received the said amount.
49. Be that as it may, as the Impugned Award now stands modified,
the excess amount deposited by the appellant shall be released in
favour of the appellant along with proportionate interest accrued
thereon. The remaining amount shall be released in favour of the
respondent nos.1 to 3 in accordance with the Schedule of disbursal as
prescribed by the learned Tribunal in the Impugned Award.
50. The statutory amount deposited by the appellant be released in
favour of the appellant along with interest accrued thereon.
51. The appeal and the pending applications are disposed of in the
above terms.
52. There shall be no order as to costs.

NAVIN CHAWLA, J
DECEMBER 11, 2023/Arya/AS
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