THE ORIENTAL INSURANCE COMPANY LIMITED vs SMT. HIMANSHU TRIPATHI
- Court
- Uttarakhand High Court
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Office Notes,
reports,
orders or
proceedings
or directions
and
Registrar’s
order with
Signatures
SL.
Date
No.
COURT’S OR JUDGE’S ORDERS
AO/159/2012
The Oriental Insurance Company Limited
--Petitioner
Versus
Smt. Himanshu Tripathi and Others
--Respondents
With
AO No. 222/2012
Smt. Himanshu Tripathi and Another
--Petitioners
Versus
Sukhdeep Singh and Others
--Respondent
Hon'ble Alok Mahra, J.
Mr. I.P. Kohli, learned counsel for the
appellant/Oriental Insurance Company in
AO No. 159 of 2012 and respondent no. 3
in AO No. 222 of 2012.
Mr. Raveendra Singh Bisht, learned
counsel for claimants/respondent nos. 1
and 2 in AO No. 159 of 2012 and
appellants in AO No. 222 of 2012.
2. The present Appeal from Order No.
159 of 2012 has been preferred by the
Insurance Company, whereas Appeal from
Order No. 222 of 2012 has been preferred
by the claimants/appellants, arising out of
the judgment and award dated 06.02.2012
passed by learned Motor Accident Claims
Tribunal/FTC-2, Nainital in M.A.C.P. No.
18 of 2007, Smt. Himanshu Tripathi and
Another vs. Sukhdeep Singh and Others,
whereby compensation of Rs.20,36,000/-
along with interest @ 7% per annum has
been awarded in favour of the claimants.
3. Since both the appeals arise out of the
same accident and challenge different
aspects of the same judgment and award,
they are being decided by this common
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judgment.
4. Briefly stated, the case of the
claimants is that the deceased, Devendra
Kumar Tripathi, aged about 34 years, was
travelling in a Maruti car during the night
when the said car collided with Truck No.
HR-46/A-7486. The accident occurred at
about 10:30 p.m. According to the
claimants, the offending truck had been
stationed on the road without parking
lights, indicators, reflectors or any other
warning signs. Owing to the darkness and
absence of any cautionary indication, the
truck could not be noticed by the driver of
the car, resulting in the collision. The
deceased sustained fatal injuries in the
accident and succumbed thereto.
5. The claim petition was contested by
the Insurance Company. The defence of the
Insurance Company was that the offending
truck had earlier met with an accident with
another dumper bearing registration No.
HR-26-GA/1975 and thereafter had been
parked on the extreme left side of the road.
It was contended that the accident occurred
solely on account of rash and negligent
driving of the car, which collided with the
stationary truck from behind. The
Insurance Company, while admitting the
insurance coverage of the offending vehicle,
disputed its liability on the ground that
negligence was attributable to the
deceased.
6. Upon appreciation of the evidence
available on record, the learned Tribunal
recorded a finding that the accident
occurred on account of negligence of the
driver of the offending truck, who had left
the vehicle stationed on the road without
taking adequate warning or precautionary
measures. The plea of negligence or
contributory negligence on the part of the
deceased was rejected.
7. Learned counsel for the Insurance
Company has assailed the aforesaid finding
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and submitted that the learned Tribunal
has erred in fastening negligence upon the
driver of Truck No. HR-46/A-7486.
According to learned counsel, the accident
occurred when the car, being driven by the
deceased, collided with the stationary truck
from behind. It has further been submitted
that the truck had itself met with an
accident with another dumper and both
vehicles had thereafter been parked on the
left side of the road. It is, therefore,
contended that the accident was solely
attributable to the rash and negligent
driving of the deceased and that, in any
event, there was contributory negligence on
his part.
8. Per contra, learned counsel for the
claimants has submitted that the accident
occurred due to the negligence of the driver
of the offending truck. It has been pointed
out that the truck did not have back lights,
indicators or reflectors and that there was
no proper marking or cautionary indication
on the road to make the stationary truck
visible to vehicles approaching from behind.
Learned counsel has placed reliance upon
the statement of PW-4, who was an
eyewitness to the occurrence, in support of
the said submission. Learned counsel for
the claimants has further submitted that
the compensation awarded by the learned
Tribunal is inadequate. It has been
contended that the learned Tribunal
awarded only Rs.5,000/- towards funeral
expenses, Rs.10,000/- towards loss of
consortium and Rs.5,000/- towards loss of
estate. It has further been submitted that
the deceased was a contractor and an
income-tax assessee and that his income
was duly established from the income-tax
returns, but the learned Tribunal failed to
take into consideration the future prospects
of the deceased while computing the loss of
dependency.
9. Having considered the rival
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submissions and perused the evidence
available on record, this Court finds no
reason to interfere with the finding of
negligence recorded by the learned
Tribunal.
10. From the evidence on record, it is not
in dispute that the offending truck was
stationary on the left side of the road after
having met with an earlier accident.
However, the mere fact that the truck was
stationary would not absolve its driver from
the duty to take reasonable precautions for
the safety of other road users. A stationary
heavy vehicle on a road, particularly during
night hours, is required to be adequately
illuminated and marked so that it may be
noticed by vehicles approaching from
behind.
11. In the present case, PW-4, the
eyewitness, has specifically stated that the
offending truck did not have back lights,
indicators or reflectors. His testimony has
not been effectively dislodged in cross-
examination. The accident admittedly
occurred at about 10:30 p.m., and
therefore, the absence of adequate warning
signals assumes considerable significance.
12. It is also significant that although the
defence was that the truck had earlier met
with an accident and had thereafter been
parked on the extreme left side of the road.
No cogent evidence was produced by the
Insurance Company to dislodge the
testimony of PW-4.
13. The mere fact that the car collided
with the truck from behind cannot, by
itself, lead to an inference of negligence on
the part of the driver of the car. The
question of negligence has to be examined
in the totality of the circumstances. In the
facts of the present case, a stationary heavy
vehicle on the road in the dead of night,
without adequate warning lights, reflectors
or cautionary signs, constituted an evident
hazard to other road users. The learned
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Tribunal has, therefore, rightly concluded
that the proximate cause of the accident
was the negligent act of the driver of the
offending truck.
14. The plea of contributory negligence
raised by the Insurance Company also does
not merit acceptance. Except for the plea
taken in the written statement, no cogent
evidence has been brought on record to
establish negligence on the part of the
deceased. In the absence of reliable
evidence, contributory negligence cannot be
fastened upon the deceased merely on the
basis of conjecture.
15. The finding of the learned Tribunal
fastening negligence upon the driver of
Truck No. HR-46/A-7486 is accordingly
affirmed.
16. The next question, which arises for
consideration, is with regard to the
quantum of compensation.
17. The deceased, Devendra Kumar
Tripathi, was a contractor and an income-
tax assessee. His income was reflected in
his income-tax returns for the relevant
assessment years. The income declared by
the deceased for the three relevant years
was Rs.2,24,265/- for A.Y. 2003-04,
Rs.1,57,518/- for A.Y. 2005-06 and
Rs.2,76,366/- for A.Y. 2006-07, totalling
Rs.6,58,149/-. The income tax paid during
the aforesaid period was Rs.40,701/-,
Rs.21,286/- and Rs.18,607/- respectively,
totalling Rs.80,594/-. Thus, the net income
for the three years comes to approximately
Rs.5,77,555/-.
18. On the question of compensation,
learned Tribunal has calculated the average
income of the deceased by taking into
consideration his Income Tax Returns
(ITRs) for the preceding three years;
however, no amount towards future
prospects has been awarded. Since the
deceased was admittedly 35 years of age at
the time of the accident, in view of the law
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laid down by the Constitution Bench of the
Hon’ble Supreme Court in National
Insurance Company Limited vs. Pranay
Sethi and Others , reported in (2017) 16 SCC
680, the claimants are entitled to an
addition of 40% towards future prospects.
It is further submitted that the Tribunal
has awarded only Rs.10,000/- towards loss
of consortium, whereas, in view of the
settled principles of law, an amount of
Rs.40,000/- each ought to have been
awarded to the eligible claimants under the
said head. The Tribunal has also awarded
only Rs.5,000/- towards funeral expenses,
which ought to have been Rs.15,000/-.
Likewise, an amount of Rs.5,000/- awarded
towards loss of estate ought to have been
enhanced to Rs.15,000/-.
19. On the basis of the aforesaid income,
the monthly income of the deceased comes
to approximately Rs.16,043/-. For the
purpose of computation, the same is taken
as Rs.16,000/- per month.
20. The deceased was aged about 34 years
at the time of the accident and was self-
employed. Therefore, an addition of 40%
towards future prospects is liable to be
made. Accordingly, 40% of Rs.16,000/-
comes to Rs.6,400/-, and the monthly
income after addition of future prospects
comes to Rs.22,400/-. The annual income
would accordingly come to Rs.2,68,800/-.
After deducting one-third towards personal
and living expenses of the deceased, the
annual contribution towards the family
comes to Rs.1,79,200/-. Applying the
multiplier of 16, the loss of dependency
comes to Rs.28,67,200/-.
21. So far as the conventional heads are
concerned, the amount awarded by the
learned Tribunal is found to be inadequate.
The claimants are entitled to Rs.15,000/-
towards funeral expenses, Rs.15,000/-
towards loss of estate and Rs.80,000/-
towards loss of consortium, i.e.
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Rs.40,000/- each to claimant nos.1 and 2.
Accordingly, the compensation payable to
the claimants is reassessed as follows:
Loss of dependency: Rs.28,67,200/-
Funeral expenses: Rs.15,000/-
Loss of estate: Rs.15,000/-
Loss of consortium: Rs.80,000/-
Total compensation: Rs.29,77,200/-
22. Thus, the claimants are held entitled
to total compensation of Rs.29,77,200/-,
instead of Rs.20,36,000/- awarded by the
learned Tribunal.
23. The enhanced amount shall carry
interest @ 7% per annum from the date of
filing of the claim petition till the date of
actual payment, subject to adjustment of
the amount, if any, already paid or
deposited pursuant to the award passed by
the learned Tribunal.
24. In view of the foregoing discussion, the
Appeal from Order No.159 of 2012,
preferred by the Insurance Company, fails
and is accordingly dismissed. The Appeal
from Order No.222 of 2012, preferred by
the claimants, is partly allowed to the
extent indicated above.
25. Consequently, the judgment and
award dated 06.02.2012 passed by the
learned Motor Accident Claims Tribunal/
FTC-2, Nainital in M.A.C.P. No.18 of 2007
is modified to the aforesaid extent. The
claimants shall be entitled to total
compensation of Rs.29,77,200/- along with
interest @ 7% per annum from the date of
filing of the claim petition till actual
payment, after adjustment of the amount, if
any, already paid or deposited.
26. The appellant-Insurance Company
shall deposit the enhanced amount, along
with interest, before the learned Tribunal
within a period of eight weeks from the date
of production of a certified copy of this
judgment.
27. The statutory amount, if deposited by
the appellant at the time of filing the
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appeal, shall be remitted to the Tribunal
concerned for adjustment towards the
award amount. Thereafter, the learned
Tribunal shall disburse the amount to the
claimants in accordance with law.
(Alok Mahra, J.)
31-08-2026
SB
SHIKSHA
BINJOLA
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BINJOLA Date: 2026.09.01 18:20:48 +05'30'