Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., emphasizing the principle of res ipsa loquitur and placing a detailed explanation on the same granted just and fair compensation to a person who was 100% disabled due to an accident at his place of work.

Factual Backdrop

Petitioner’s son (Bharat) who was 28 years of age was the victim of an accident at the age of about 21 years which had left him 100% disabled. Instant petition was filed by petitioner’s father since petitioner was stated to be virtually bed ridden and not in a position to file to pursue his claim against the respondents.

Petitioner had made claims against the respondents BSES Rajdhani Power Limited and Bryn Construction Company.

Further, it was submitted that petitioner had suffered an accident due to certain work performed by Bryn for BRPL, which led to the filing of the present petition.

Cause of Permanent Disability

 Bharat, who was then about 21 years of age, while working as an electrician with Bryn, was tasked with rectifying a fault in an electricity pole that was causing fluctuation in the electricity supply at a farmhouse and suffered a fall while performing the task since the electricity pole that he had climbed on, snapped and fell.

Bharat’s dismal physical state apart, it was also evident to this court that Bharat was a psychological wreck, not least because in the course of interaction with this court, he broke- down on several occasions.

Depression and Anxiety

 As per medical opinion in regard to Bharat’s psychological state, his level of mental depression and anxiety fall in the “abnormal range”.

Questions for Consideration

  • Given his medical condition, what course of action should be adopted for Bharat’s further rehabilitation, continuing care and welfare?
  • Is Bharat entitled to receive any monetary compensation for the injury suffered by him as a result of the accident; if so, from which of the respondent or respondents?
  • If the answer to (ii) above is in the affirmative, in what manner should the compensation be calculated?

Analysis, Law and Decision

While analyzing and penning down this interesting decision, Court addressed a very fundamental issue, whether Bharat was an ‘employee’ of Bryn or was engaged by Bryn to perform the task that led to the accident.

It was noted that Bryn did not expressly admit that Bharat was their employee; nor that he had been engaged by them to perform the task in question.

However, there was also no denial of any kind, whether express or implied, that Bharat was working for Bryn. The thrust of Bryn’s counter-affidavit is that BRPL is responsible to compensate Bharat for the injury, since at the relevant time Bharat was working under BRPL’s supervision and performing BRPL’s tasks.

Court took note of the fact that while BRPL and Bryn both contended that all requisite safety equipment and precaution were made available by them, neither BRPL nor Bryn explained why such equipment, if available, failed to protect Bharat from the serious injury he suffered. 

Opinion of the Court

Bench opined that Bharat was working for Bryn and was tasked with certain maintenance work to be performed on an electricity pole owned by BRPL; which pole, it turned-out, was not strong enough to take Bharat’s weight or was not rooted securely in the ground, and thereby fell, as a result of which Bharat sustained serious injuries. It is also evident that Bharat was not provided any safety gear before he was directed to climb the pole to undertake the task.

 Principle of res ipsa loquitur

High Court added to its analysis that the instant matter would be squarely covered by the principle of res ipsa loquitur, whereby no detailed evidence, much less a trial, is required to establish ex-facie negligence on the part of BRPL and Bryn.

The said maxim was lucidly explained in the leading Supreme Court decision of Shyam Sundar v. State of Rajasthan, (1974) 1 SCC 690,

 The maxim res ipsa loquitur is resorted to when an accident is shown to have occurred and the cause of the accident is primarily within the knowledge of the defendant. The mere fact that the cause of the accident is unknown does not prevent the plaintiff from recovering the damages, if the proper inference to be drawn from the circumstances which are known is that it was caused by the negligence of the defendant. 

Elaborating further, the Court stated that the accident could not have occurred had Bryn and/or BRPL not been negligent in taking reasonable precautions to avoid it; which gave rise to their strict liability for the injuries sustained by Bharat.

The undated declaration with no proof of payment made to Bharat, though the declaration signed by Bryn accepting payment of a small sum of compensation in full and final settlement from Bryn and absolving them of any further liability.

In Court’s view, the above-mentioned declaration, deserved no credence or value since it smacked of being a document procured by Bryn precisely for the purpose of absolving itself of any further claim or liability vis-à-vis Bharat, by suborning a hapless and resourceless victim with a small amount of monetary bait, knowing full well that their actual liability would be much more.

Bench further expressed that merely because there were more than one respondent attempting to foist blame or liability on each other, that would not defeat the just claim of the petitioner’s son.

Hence, both respondents would be held jointly and severally liable, giving them liberty to recover the whole or any part of compensation paid, from one another.

High Court’s Inference

  • Without delving into the technical semantics of whether Bharat was an ‘employee’ of Bryn within the meaning of the Employee’s Compensation Act, suffice it to say that Bharat was performing the task in question for Bryn and at their instance
  • Bharat is unable to perform even the most basic, personal, daily chores himself and is all but 100% dependent on others; and as a result, though Bharat is living, he is barely alive;
  • On the principle of ‘strict liability’, both Bryn and BRPL are, jointly and severally, liable to compensate Bharat for putting him in his current state;
  • Section 4(2)(a) of the Employee’s Compensation Act mandates that apart from the liability to pay compensation, the employer is also under obligation to reimburse all actual medical expenses incurred by an employee for treatment of injuries. Furthermore, section 4-A provides that failure of an employer to pay compensation in a timely manner would attract payment of both interest and penalty for the delayed payment of compensation;
  • Reading the Bryn-BRPL Agreement and section 12 of the Employee’s Compensation Act together, it is seen that section 12 also fixes liability upon the “principal” for payment of compensation to an injured employee, with a right in the principal to recover the same from the contractor, if work was being carried-out by a contractor. In the present case the principal would therefore be BRPL and the contractor would be Bryn
  • Allowing the petition, Court awarded Bharat relief in two broad categories:
  1. Monetary Relief
  2. Non-Monetary Relief by way of directions.

Details of the relief can be referred to in the Judgment.

In view of the above discussion, petition was disposed of. [Kehar Sigh v. GNCTD, 2021 SCC OnLine Del 4198, decided on 25-08-2021]


Advocates before the Court:

For the Petitioner: Prabhsahay Kaur, Amicus Curiae.

Saraswati Thakur, Advocate.

For the Respondents: Satyakam, Additional Standing Counsel for GNCTD/R1

Ravi Gupta, Senior Counsel with Sunil Fernandes, Standing Counsel for BRPL-RPL with Anju Thomas, Shubham Sharma and Sachin Jain, Advocates for R2.

A.K. Sharma, Advocate for R3. Saurabh Sharma, Advocate for Indian Spinal Injuries Centre.

Sayli Petiwale, Advocate for Anil Mittal, Advocate for State of U.P.

Case BriefsSupreme Court

Supreme Court: In a case dating back to the year 1995 where a bus driver had caused an accident, thereby injuring a driver of a car, the 3-judge bench of Ashok Bhushan, Vineet Saran and MR Shah, JJ has upheld the conviction of the bus driver under Sections 279 and 338 of IPC but has held that sending the accused to jail after 26 years would be harsh.

The incident took place on 16.02.1995 i.e. more than 26 years ago and the appellant was throughout on the bail. The Trial Court recorded the conviction under Section 279, 338 and awarded sentence of imprisonment of six months and further sentenced to pay a fine of Rs.500/- under Section 337.

However, the Supreme Court substituted the sentence by fine of Rs. 1000/- each.

“The conviction of appellant is affirmed, however, looking to the facts and circumstances of the present case specially the fact that 26 years have elapsed from the incident, we are inclined to substitute the sentence of six months imprisonment under Section 279 and 338 into fine. Six months sentence under Section 279 and 338 IPC are substituted by fine of Rs.1000/- each whereas sentence of fine under Section 337 IPC is maintained.”

[Surendran v. Sub-Inspector of Police, 2021 SCC OnLine SC 445, decided on 30.06.2021]


*Judgment by: Justice Ashok Bhushan 

Messiah of the sufferers: Bidding adieu to Justice Ashok Bhushan

Case BriefsHigh Courts

Gauhati High Court: Parthivjyoti Saikia, J., addressed the instant appeal under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 30-08-2016 which had been filed for enhancement of award.

The facts of the case were such that on 07-07-2013, one Bimal Kr. Saikia (the deceased) was waiting for a bus on NH-37. He was standing left side of the road in order to take the bus ride back home when the vehicle bearing registration No. AS-01/K-8766 knocked down the deceased. The deceased was immediately shifted to Civil Hospital at Nagaon but he succumbed to his injury there. It was alleged that the accident took place because of the rash and negligent driving of the aforesaid vehicle.

On the basis of the Income Tax return for the financial year 2013-14, the Tribunal had assessed the monthly income of the deceased as Rs 12,619 only and the age of the deceased had been stated as 40 years. The applicant contended that the future prospect of the deceased should have been held at 40% only by the Tribunal and not 50%. Regarding the consortium, funeral expenses, loss of care and guidance for children, the appellant had relied on the decision of Supreme Court in National Insurance Company Limited v. Praynay Sethi, (2017) 16 SCC 680, the appellant submitted that on the aforesaid heads the claimant was entitled to Rs 70,000 only.

The Bench opined that the monthly income of the deceased had been rightly assessed at Rs 12,619. The Court reiterated,

“Being beneficial legislation, in a claim case under the Motor Vehicle Act strict proof of Income Tax Return may not be mandatory in all circumstances.

Holding that the Tribunal had committed an error because, the deceased being below 40 years of age, only 40% should have been added as future prospect. Regarding compensation under the loss of consortium head, financial expenses head and loss of care and guidance for children head, the Bench held that all together for these three heads the claimants were entitled to Rs 70,000 only.

Hence, the Court held that the claimant was entitled to Rs 21,90,040 only. The appeal was allowed and the appellant was directed to pay Rs 21,90,04 only to the claimant.[Oriental Insurance Co. Ltd. v. Nitanjali Devi Saikia, 2021 SCC OnLine Gau 648, decided on 18-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. R D Mozumdar

For the Respondent: Adv. A J Sarma

Case BriefsSupreme Court

Supreme Court: Appalled with the arrest of Anuj Jain, the Interim Resolution Professional of the company managing the Yamuna Expressway, in connection with an accident that happened on the expressway that killed seven members of a family, the bench of AM Khanwilkar and Dinesh Maheshwari, JJ has directed his immediate release and has also issued a show cause notice to the Investigating Officer, Bijender Singh, Sub-Inspector, as to why appropriate action is not taken against him for taking such drastic action against Jain.

Jain was arrested in connection with an FIR that was filed after seven members of a family had died in an accident that happened on the highway. The victims were travelling towards Delhi when an overspeeding oil tanker jumped the divider and rammed into the victims’ vehicle The collision led to the spilling of oil from the tanker, resulting in a massive fire that engulfed both the vehicles.[1]

Shocked to the see the extreme step taken by UP Police to arrest the Interim Resolution Professional, Anuj Jain, working in that capacity pursuant to the order passed by the Court and entrusted with the functioning of the Company, the Court said,

“It is seen that the police official dealing with the case is not familiar with the provision of privilege of interim resolution appointed by the Court, in terms of Section 233 of the Insolvency and Bankruptcy Code.”

State of Uttar Pradesh had submitted before the Court that the Investigating Officer, Bijendra Singh, was of the view that the applicant may leave India at any time to avoid the prosecution and for securing his presence thought it necessary to arrest him from Mumbai.

Taking note of this submission, the Court said that it

“… will examine this aspect of the matter elaborately at appropriate time by treating this application as substantive writ petition filed by the applicant under Article 32 of the Constitution of India and to be numbered accordingly.”

In the meantime, the Court directed the release of Jain and further directed the Investigating Officer not to take any coercive action against him in connection with the subject F.I.R. until further orders.

The Court asked the Registrar(Judl.) to personally intimate the office of the concerned Judge and Police Station Beta-II, District Greater Noida, Uttar Pradesh on telephone “to ensure immediate release of the applicant, Mr. Anuj Jain, without imposing any conditions”.

[Jaypee Kensington Boulevard Apartments Welfare Association v. NBCC (India) Ltd, 2021 SCC OnLine SC 160, order dated 02.03.2021]


Appearances before the Court by:

For applicant: Senior Advocates Parag Tripathi and Sidharth Luthra

For State: Senior Advocate R.K. Raizada

[1] Yamuna Expressway management firm’s officer held after FIR following fatal accident by Abhishek Anand, India Today, Last Updated: March 2, 2021 13:06 IST

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Alok Aradhe and Nataraj Rangaswamy, JJ., disposed of the appeal after modifying the compensation.

The facts of the case are such that the deceased Sanjeev M Patil was crossing the road as a pedestrian at 6:00 am in morning when a bus being driven in a rash and negligent manner by its driver dashed against the deceased as a result the deceased received grievous injuries and succumbed to the same. The claimants filed a petition seeking compensation which was thereby granted keeping in mind his young age and monthly income. Aggrieved by the same, the present appeal was filed.

Counsel for appellants submitted that the Tribunal has erred in its judgment and the accident took place 75 meters from the toll booth and that the deceased suddenly tried to cross the road without observing the vehicles approaching the toll counter. It was also submitted that there is a gross error in assessing the monthly income and compensation is excessive.

Counsel for the respondents submitted that as per an independent eye witness it is clear that the accident happened due to the rash and negligent driving of the bus by the driver and the monthly income calculated is correct as the deceased was a permanent employee and infact sums awarded under the heads “loss of consortium” and “loss of love and affection” are on the lower side and deserves to be enhanced suitably.

The Court relied on judgment Mangala Ram v. Oriental Insurance Co., (2018) 5 SCC 656 and observed that the proceeding under the Act has to be decided on the basis of preponderance of probabilities and the claimant is not required to prove the accident beyond reasonable doubt.

The Court thus held that “he Tribunal on meticulous appreciation of the evidence on record as well as on the basis of preponderance of probabilities has rightly held that the accident occurred on account of the negligence of the driver of the KSRTC bus.”

On the question of amount of compensation the Court held that after perusing the salary slip and income tax return statements and keeping in mind the future aspects the compensation was modified.

In view of the above, appeal was disposed off.[Gowri S. Patil v. Divisional Controller, 2021 SCC OnLine Kar 447, decided on 04-02-2021]


Arunima Bose, Editorial Assistant has put this story together.

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): The Division Bench of Justice Umesh Chandra Srivastava (Chairperson) and Vice Admiral Abhay Raghunath Karve (Member) A, heard the instant application seeking grant of special family pension.

Husband of the applicant was enrolled in the Army on 22-12-2003. While being posted to 20 RAJ RIF unit, he was granted 04 days Advance of Annual Leave from 06-11-2010 to 09-11-2010. On 06-11-2010 husband of applicant met with a road accident and subsequently died on 15-11-2010 in Command Hospital, Lucknow. A Court of Inquiry was convened and it was opined that death of husband of applicant was neither attributable to nor aggravated by military service and also not connected with military service. Accordingly, the applicant was granted an Ordinary Family Pension.

The applicant approached the government to sanction Special Family Pension but her case was rejected. Thereafter, she preferred O.A. No. 384 of 2018 before this Tribunal which was disposed of on 31-08-2018 with direction to the respondents to decide the pending appeal of the applicant by a speaking and reasoned order in accordance with law within a period of three months. Till date, the order had not been complied with. Thereafter, applicant filed Execution Application No. 236 of 2018, during which government passed the impugned order dated 18-11-2019 denying Special Family Pension to the applicant.

Noticing the report of the Court of Inquiry, the Tribunal expressed, the State had denied special family pension to the applicant on the reason that for getting special family pension, in respect of injury sustained resulted to death during course of employment, there must be some causal connection between the injury/death and military service, which was being lacking in applicant’s case.

 The Supreme Court, in  Madan Singh Shekhawat v. Union of India, (1999) 6 SSC 459 framed following points for consideration regarding grant of pension:-

“(a) When Armed Forces Personnel proceeds on casual leave or annual leave or leave of any kind, he is to be treated on duly

(b) There has to be causal connection between the injury or death caused by the military service. The injury or death must be intervention of armed forces service and not an accident which could be attributed to risk common to human being.”

In view of above guiding factors, the Tribunal reached to the findings that husband of the applicant was on advance of annual leave when he met with accident with another motorcycle and later succumbed to injuries, the activity in which he sustained injury resulted to death were neither attributable to nor aggravated by military service and not connected with his military duties in any manner’. Hence, the Tribunal dismissed the petition holding that the widow was not entitled to special family pension. [Neelam Singh v. Union of India, 2021 SCC OnLine AFT 1815, decided on 04-02-2021]


Kamini Sharma, Editorial Assistant has put this story together

Case BriefsHigh Courts

Delhi High Court: J.R. Midha, J., while addressing a motor accidents claim application decided on the issue whether it would be fair to deny compensation for loss of dependency to a parent, who may not be dependent on his/her child at the time of accident per se but would become dependent at his/her later age?

In the instant application, the appellants challenged the award of the Claims Tribunal and sought enhancement of the award amount.

The deceased was aged 23 years at the time of the accident and was survived by his parents who claimed compensation. Deceased was self-employed as a Contractor earning Rs 55,000 to Rs 60,000 per month.

Claims Tribunal held that since the deceased’s father was working with the Delhi Police as Sub-Inspector, hence was not dependent upon the deceased. Also, the deceased’s mother could not be said to be dependent upon the deceased as her husband was employed with the Delhi Police.

Therefore the Claim Tribunal had concluded that the deceased’s parents were not entitled to compensation for loss of dependency but only to compensation for loss of the estate in terms of the principles laid down in Keith Rowe v. Prashant Sagar, 2011 ACJ 1734.

Analysis, Decision and Law

  • Whether the mother of the deceased is entitled to compensation for the death of her son?

Court opined that the parents of the deceased were considered in law as dependent on their children, considering that the children are bound to support their parents in their old age, when the parents would be unable to maintain themselves and the law imposes a responsibility on the children to maintain their parents.

Further, the Bench added that

Even if the parents are not dependent on their children at the time of the accident, they will certainly be dependent, both financially and emotionally, upon their children at the later stage of their life, as the children were dependent upon their parents in their initial years.

With regard to loss of dependency, the Court held that it would be unfair as well as inequitable to deny compensation for loss of dependency to a parent, who may not be dependent on his/her child at the time of accident per se but would become dependent at his/her later age.

Following are legislations that recognize the legal rights of parents to be maintained by their children:

♦ Section 125 of the Code of Criminal Procedure, 1973

♦ Section 20 of Hindu Adoption and Maintenance Act, 1956, and Maintenance and Welfare of Parents and Senior Citizens Act, 2007

Bench referred to the following decisions:

Vijaya Manohar Arbat v. Kashirao Rajaram Sawai, (1987) 2 SCC 278.

In Magma General Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130 Supreme Court had reaffirmed the with respect to the rights of parents to compensation in case of accidental death of a child.

Mahendrakumar Ramrao Gaikwad v. Gulabbai Ramrao Gaikwad, 2001 CriLJ 2111

In Sarla Verma v. D.T.C., (2009) 6 SCC 121, the Supreme Court held that the mother of the deceased bachelor is entitled to compensation by taking 50% of his income as loss of dependency on the premise that the deceased would not contribute more than 50% to his mother after marriage. The Supreme Court further observed that the mother would be considered as a dependent even if the father was employed and earning.

In light of the above decisions, the High Court held that the parents of the deceased child are considered as dependents for computation of compensation. Further, the Bench also highlighted that the principles relating to the loss to the estate shall apply only to claimants other than parents, children and spouse.

Hence, the deceased’s mother in the instant case is entitled to compensation for loss of dependency.

Compensation

Taking the income of the deceased as Rs 4,131 per month, adding 40% towards future prospects, deducting 50% towards personal expenses and applying the multiplier of 18, the loss of dependency is computed as Rs 6,24,607.20.

Court directed the appellant 1 to remain present in Court before the next date of hearing along with the passbook of her savings bank account near the place of her residence as well as PAN card and Aadhaar card.

Appellant 1 shall produce the original passbook of her individual savings bank account with the necessary endorsement on the next date of hearing. However, the bank concerned shall permit appellant 1 to withdraw money from her savings bank account by means of a withdrawal form.

While concluding in light of the above-stated, Court asked for the copy of this Judgment to be sent to Delhi Judicial Academy to sensitize the Claims Tribunals about the principles laid down by this Court in the present Judgment. [Indrawati v. Ranbir Singh, 2021 SCC OnLine Del 114, decided on 08-01-2021]


Advocates for the parties:

For the Appellants: Santosh Kumar Chauriha, Advocate

For the Respondents: Atul Nigam, Advocate along with Anubhav Tyagi and Randhir Kumar, Advocates for R-3

Case BriefsHigh Courts

Karnataka High Court: Ashok S. Kinagi J., allowed the appeal and applied the pay and recover principle fastening the liability on the owner to pay the compensation.

The facts of the case are such that the claimant was sitting in the backside of the auto-rickshaw, the driver was driving rashly and negligently without following traffic rules and regulations and dashed the same to a motorcycle which was going in front of auto-rickshaw because of which the auto turned turtle and the claimant sustained grievous injuries in the said accident. Thus, a claim petition was filed before the Tribunal for compensation which was thereby granted by holding that the respondents are jointly and severally liable to pay it. Being aggrieved by the same, the present appeal was filed.

Counsel for the appellants submitted that the tribunal has committed an error in fastening the liability on the insurer as the vehicle was plying outside the permitted limit and hence the insurance is not liable to pay compensation.

Counsel for the respondents supported the impugned judgment and award.

The Court relied on judgment Shamanna and Divisional Manager, Oriental Insurance Co. Ltd., 2018 ACJ 2163 and observed that when there is a breach of policy conditions and the policy is in force as on the date of the accident, it is for the insurance company to pay the compensation amount and recover the same from the owner.

The Court thus held that the permit disclosed that offending vehicle was permitted to ply within 16 km from Savdatti but in fact, the accident has occurred outside the limit of Savadatti i.e., outside of 16 km from the permit limit. It was further observed that on the date of the accident the insurance policy was in force but at the time of the accident, the vehicle did not have permit at the accident spot. Thus there is a clear violation of policy conditions.

In view of the above, the appeal was allowed in part directing the insurer to pay the compensation amount and recover the same from the owner.[Divisional Manager v. Riyaz Ahmed, M.F.A. No. 100275/2015 (MV), decided on 06-02-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Kerala High Court: Anil K, Narendran, J., allowed this Motor Accident Claim Appeal filed against the order of Motor Accidents Claims Tribunal.

In the instant appeal, a claim petition filed under Section 166 of the Motor Vehicles Act 1988 was challenged for being inadequate. The appellant sustained injuries in a motor accident, which occurred on 27-04-2014, while he was riding a motorcycle. At the place of accident, the motorcycle was hit by a car. The counsel for the motorcyclist K.A. Hassan alleged that the accident occurred due to the rash and negligent driving of the car by the respondent 1. A claim petition was filed before the Tribunal claiming a total compensation of 4,50,000 rupees.

The car driver, while admitting the occurrence of accident contended through his counsel, A.A. Ziyad Rahman that the accident happened due to the rash and negligent riding of the motorcycle by the motorcyclist. It was contended by the Insurance Company that the compensation claimed is highly excessive.

The Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the car by its driver. The Tribunal awarded a total compensation of 99,500 rupees together with interest at the rate of 9% per annum from the date of petition till realisation.

The Court relied on National Insurance Company Ltd. v. Pranay Sethi, (2017) 16 SCC 680, wherein a Constitution Bench of the Supreme Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of ‘just compensation’ and the same has to be determined on the foundation of fairness, reasonableness and equitability on an acceptable legal standard. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case.

 In the view of the above considerations, the Court granted an additional compensation of 15,750 rupees with interest at the rate of 8% per annum from the date of petition till realisation. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify additional compensation granted in this appeal, together with interest to the insured within a period of two months. [Asharaf K.A v. Easow T.T., 2020 SCC OnLine Ker 7968, decided on 20-01-2020]

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., observed that if the insurance co. will not be liable to pay interest, then it will be against the spirit of taking an insurance policy, and the very object for introducing insurance policy will get frustrated.

Appeals in the instant matter are out of the decision and award passed by the Commissioner, Workmen’s Compensation Act, 1923 being Additional Labour Commissioner, Kanpur awarding a sum of Rs 6,30,062 with interest at the rate of 9% in favour the claimants.

The owner was saddled with the liability to pay interest.

Question of law in the instant case:

Whether in the given facts and circumstances of the case, the Commission has committed a manifest error of law holding that if the respondent has failed to deposit the awarded amount within 30 days from the date of judgment then only claimants are entitled to the interest at the rate of 9% from the date of award till the amount is deposited.

Owner’s Counsel submitted that the Commissioner committed patent error directing the owner to pay interest.

Counsel for the insurance Company tried to point out that the judgment and order impugned was just and proper as it was the duty of the owner to notify the insurance company about the accident which was not done and hence the owner was saddled with the payment of interest till the date of the decision.

While dealing with the above question of law, the Court found it appropriate to reproduce Section 4A of the Act. 

Section 4A. Compensation to be paid when due and the penalty for default.

Supreme Court’s decision in Oriental Insurance Company v. Siby George, 2012 (4) T.A.C 4(SC) wherein it was held that the payment of interest is a consequence of default and it has to be directed to be paid without going into the reasons for the delay and only in case where the delay is without justification, the employer might also be held liable to a penalty after giving him a show-cause notice. Thus, just because the owner had not intimated to the Insurance Company, it cannot be the reason for not directing the Insurance Company to pay the interest.

Hence, in the findings that the Insurance Company will not be liable for interest is against the spirit of taking the insurance policy and the very object for introducing insurance policy would get frustrated.

High Court in view of the several Supreme Court decisions partly allowed the appeals.

Hence Judgment and award of the Commissioner shall stand modified to the aforesaid extent namely to the extent that the Insurance Company shall deposit the decretal amount with interest at the rate of 12% from one month after the date of accident till the amount is deposited.

In the present matter, it is the parents who were demanding from one son for the death of another son and they have claimed from Insurance Company with whom the vehicle was insured to make payment. Therefore, the minimum penalty of Rs 10,000 would suffice on the Insurance Company. 

Appellants shall deposit a sum of Rs 10,000 which would be a substitution for the penalty. [Chanda Begum v. Shahnawaz, 2020 SCC OnLine All 1487, decided on 16-12-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Dinesh Singh (Presiding Member) while addressing the instant first appeal upheld the State Commission’s Order in regard to a claim filed by the insured with the insurance company.

The instant appeal was filed under Section 19 of the Consumer Protection Act, 1986 challenging the Order passed by the State Consumer Disputes Redressal Commission, Maharashtra.

Complainant Firm took an insurance policy to cover its plant and machinery, electrical installations and stock-in-trade. The premium was paid for the valid policy. In 2005, an incident of fire took place and the insurance company was intimated after which survey was conducted.

The complainant had claimed an amount of Rs 17,00,000 but the surveyor assessed the loss at Rs 1,54,500. Since the Complainant Firm failed to submit the relevant record for verification, as mentioned in the Surveyor’s Report. Hence, Insurance Company filed the claim as ‘no claim’.

State Commission vide its impugned Order dated 22-09-2015 allowed the Complaint at the loss assessed by the Insurance Co.’s Surveyor i.e. at Rs 1,54,500 and awarded the said amount with interest at the rate of 9% per annum.

Complainant Firm appealed before this Commission for enhancement in compensation, specifically for accepting its claimed loss of Rs 17,00,000.

Analysis and Decision

Investigation and Survey by an insurance company are fundamental in determining the amount payable to the insured.

Bench observed that an insurance company is duty-bound to appoint its surveyor in accordance with the provisions of the Insurance Act, 1938 (Section 64 UM Surveyors or loss assessors specifically refers). A Survey cannot be disregarded or dismissed without cogent reasons.

Further, the Commission also observed that the onus,

[a] of showing that the Report of the Surveyor appointed by the Insurance Co. was flawed and

[b] of showing that actually, in fact, the loss was Rs 17,00,000, was on the Complainant Firm, which onus it failed to discharge.

Hence, in view of the above discussion, the Commission held that the State Commission had passed a reasoned order.

State Commission’s impugned order was upheld and confirmed.[Wilson Home Appliances v. New India Assurance Co. Ltd., 2020 SCC OnLine NCDRC 493, decided on 10-12-2020]


Advocates who appeared for the matter:

For the Appellant:  Ms Manisha T. Karia, Advocate

For Respondent 1: Mr S. M. Tripathi, Advocate

For the Respondent 2: Ex parte

Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of P. R. Ramchandra Menon and Parth Prateem Sahu JJ., allowed the appeal and modified the impugned award.

The facts of the case are such that on 18-05-2011, Karan along with other labourers was travelling on a Dumper i.e. ‘offending vehicle’ to village Badeli when they met with an accident due to rash and negligent driving of offending vehicle by non-applicant 4 and Karan came under the offending vehicle and died. A claim application under Section 166 of the Motor Vehicle Act was filed before the learned Claims Tribunal and liability to pay the compensation was fastened on the insurance company.

Counsel for the appellants submitted that deceased was travelling as ‘gratuitous passenger’ in a ‘goods carriage vehicle’; the driver of offending vehicle was not possessing valid and effective driving licence, claimants are not entitled to any amount of compensation as it is a breach of conditions of the insurance policy.

Counsel for respondents submitted that it was a burden upon the Insurance Company to prove that on the date of accident, driver of the offending vehicle was not possessing a valid and effective driving licence, in which, it failed and no evidence has been brought on record by Insurance Company in support of their ground to prove that non-applicant No.4 was not possessing valid and effective driving licence.

Issue 1: The Court observed that in view of undisputed facts and evidence available on record it was clear that deceased was travelling in a goods carriage vehicle, he was not an employee of the owner of offending vehicle; the policy issued was only ‘Liability Only Policy’, no premium paid for any gratuitous passenger travelling in the vehicle, Insurance Company cannot be held liable to satisfy the amount of compensation against the death of Karan alias Phekan whose status was of ‘gratuitous passenger’.

Issue 2: The Court further observed that as far as the ground relating to no licence is Concerned the licence itself was not placed on record, then it cannot be said that Insurance Company has not discharged its burden to prove that non-applicant No.4 was not possessing valid and effective driving licence, in fact, it is a case of no licence. The Court thus held that nonapplicant No.4 was possessing valid and effective driving licence is perverse and it is hereby set aside.

Issue 3: The Court observed that as far as the ground that claimants are not entitled to any amount of compensation as they are not legal representatives and dependant upon the deceased is concerned, it was stated that In view of aforementioned evidence available on record when the claimants have not filed any document to show their relationship with deceased nor examined any independent witness of the village where the deceased was residing to prove that deceased was residing with claimants on the date of the accident.

The Court respect to maintaining an application by a person not dependant on the deceased observed that “the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead, it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression ‘legal representative’.”

 The Court thus held that the claimants failed to prove that they were dependant upon deceased, the relationship being respondent 1 to be real sister of deceased not proved. Non-applicant 2 is earning and nothing is mentioned about the husband of applicant 1 and father of applicants 2 to 7.

In view of the above, the appeal was allowed and Insurance Company was exonerated from its liability to satisfy the amount of compensation and instead it was cast upon non-applicant 3/registered owner of the offending vehicle.[United India Insurance Company v. Kimani Devi,  2020 SCC OnLine Chh 881, decided on 09-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., modified the sum of the award granted to a widow by the Motor Accident Claims Tribunal.

The instant appeal was filed challenging the judgment and award passed by the Additional District Judge wherein the sum of Rs 70,000 with an interest of rate 7% was awarded.

Brief facts

The deceased was 62 years of age at the time of the accident. The claimant was the sole surviving legal heir of the deceased. Further, it was added that the deceased was a retired railway employee and was getting pension.

In view of the above circumstances, the pension was halved and the widow was getting Rs 14,000 which shows that she lost Rs 14,000 because of the sad demise of her husband.

MACT awarded a sum of Rs 70,000 while relying on the decision of Supreme Court in National Insurance Company Ltd. v. Pranay Sethi, (2017) 16 SCC 680 holding that there was no loss of income.

Further tribunal held that claimant was the legal heir and legal representative of the deceased, the deceased was 62 years of age whose income was shown to be Rs 30,000 per month but no document was produced, hence tribunal did not believe the income to the deceased to be Rs 30,000.

Tribunal also added to its observation that the deceased had been receiving the pension of Rs 28,000 and after his death, family pension of Rs 14,000 is being received by the claimant herself.

Therefore, as the deceased was getting Rs 28,000/- approx as a pension, 50% of the same he would be spending on himself and, therefore, Rs 14,000 would be the monthly datum figure available to the widow.

Issue:

Can the claimant a widow who receives family pension be deprived of compensation is the main question which arises for consideration. If the answer to it is in the negative, what compensation is she entitled to?

Bench stated that, Tribunal ought to have considered the fact that had her husband survived, she would have got a sum of Rs 28,000 per month which has now been halved. Court stated that the multiplier applicable would be ‘7’ as the deceased was in the age bracket of 61-65 years in view of the decision of the Supreme Court in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 which has been not considered by the Tribunal and has given reasonings which can be said to be questionable.

Further, relying on the decision of this Court in Regional Manager, UPSRTC v. Nisha Dubey, First Appeal from Order No. 3154 of 2013, no deduction from the pension is allowed.

In view of the above, total compensation of Rs 4,97,000 would be granted.

As far as the issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Supreme Court in National Insurance Co. Ltd. v. Mannat Johal, (2019) 15 SCC 260.

The claimant is the widow of a railway officer and, therefore, she is not illiterate, hence, all the amount need not be invested but shall be transferred to her account.

In view of the above, the appeal was partly allowed. [Subhadra Pandey v. Siddharth Agrawal, First Appeal From Order No. 1237 of 2018, decided on 07-12-2020]

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., while addressing the matter observed that:

“…where there are multiple claims, MACT should place all the matters before the same Tribunal and the same tribunal should consolidate the matter and decide the same.” 

The instant appeal was at the behest of the claimants preferred against the award passed by the Motor Accident Claims Tribunal.

Factual Matrix

An accident took place on 26-02-2009 when the deceased along with her husband and another person namely Harendra Singh and others were travelling. The car was being driven by the claimant i.e. the husband. Further, it has been stated that a tanker coming from the opposite direction very negligently and carelessly turned to the right side of the road and rammed into the car causing an accident in which the wife of Harendra Singh, wife of claimant 1 and one other person namely child sustained multiple injuries.

Harendra Singh’s wife died due to the injuries and claimant’s wife suffered pain for almost about 3 months due to which she was hospitalised and later died.

Tribunal

Tribunal framed several issues and came to the conclusion that the husband of the deceased namely claimant 1 who was equally negligent and written the finding of the contributory negligence thereby halving the compensation awarded to the claimants.

Matter being considered in the High Court

In the above-background, the instant matter requires to be considered. the appellants are the legal heirs of the deceased.

Legal representatives rather heirs of the deceased felt aggrieved with the tribunals’ finding on the issue of negligence and compensation as far as the decision of the tribunal on other issues was concerned they attained finality.

Out of the said accident, as has been stated above, one other claim petition was being preferred by Harinder Singh v. Kamal Singh, MACP No. 104 of 2009 under Section 166 of the Motor Vehicles Act, 1988. This matter was tried before another tribunal wherein it was decided that the driver of the truck was solely negligent and claimants were to be compensated.

The above-stated decision was placed before the tribunal whose order is impugned.

Analysis and Decision

The truck rammed into the car causing 3 casualties of persons travelling in the Maruti van and caused injuries to other inmates of the car.

Supreme Court in the decision of Sudarsan Puhan v. Jayanta Mohanty, (2018) 10 SCC 552 and UPSRTC v. Mamta, (2016) 4 SCC 172 held that the appeal is a continuation of the earlier proceedings and High Court is under the legal obligation to decide all the issues of lis and decide it by giving reasons.

Bench stated that the tribunal has committed an error which is apparent on the face of the record and is against the settled principles of law.

Court dealt with the issue in the instant case under separate heads:

Issue of Negligence even in absence of applicability of the doctrine of res judicata and whether the same was rightly decided by the tribunal

Negligence: It means the failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not.

If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of “res ipsa loquitur” meaning thereby “the things speak for itself” would apply.

Contributory Negligence: A person who either contributes or is co-author of the accident would be liable for his contribution to the accident having taken place.

Supreme Court recently in the decision of Archit Saini v. Oriental Insurance Company Ltd., (2018) 3 SCC 365, considered the principles of negligence.

In the decision of Khenyei v. New India Assurance Company Ltd., 2015 LawSuit (SC) 469, the question of joint and several liability was considered.

In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas, in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of the combination of the negligence of two or more other persons.

Hence, it can be seen that there is a difference between contributory and composite negligence.

Supreme Court in the decision of T.O. Anthony v. Karvarnan, (2008) 3 SCC 748 has held that in case of composite negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately.

Qua applicability Of Doctrine Of Res Judicata where Decision On Negligence Was Decided By competent Tribunal in Claim Arising Out Of The Same Accident :

Doctrine of res judicata applies even if the decision by the earlier court is right or wrong but if it has attained finality between parties the doctrine shall apply and issues decided.

In light of the Gujarat High Court’s decision in United India Insurance Co. Ltd. v. Lajibhia Hamirbhai, the issue of negligence will operate as res judicata.

It is held in the said case that where the parties in two petitions are same, except the claimant, the decision by the tribunal in petition decided earlier, would operate as ‘res judicata’ as far as the issue of negligence is concerned in a subsequent petition.

Supreme Court’s decision in Ishwardas v. State of M.P., (1979) 4 SCC 163, it was held that in order to sustain the plea of res judicata, it is not necessary that all the parties to the litigations must be common. All that is necessary is that the issue should be between the same parties or between the parties under whom they or any of them claimed.

In the instant case, the claimants were being heirs of the deceased who succumbed to the injuries and qua them even if the tribunal was of the opinion that the driver of the car was negligent therefore it was a case of composite negligence.

Court concluded that there was no rebuttable evidence before the tribunal to hold the driver of the car also negligent. Tribunal misdirected itself in venturing to decide the issue afresh without discussing why he would not follow the earlier decision, therefore the said decision required modification.

Question of Legal Representative 

Section 2 (11) of the Code of Civil Procedure defines the term ‘legal representative’.

In the Supreme Court decision of GSRTC v. Ramanbhai Prabhatbhai, (1987) 3 SCC 234, it was held that for claiming compensation under either of the Acts the term legal cannot be given a narrow meaning as ascribed in Fatal Accidents Act 1855. Major, married son & earning son of the deceased can claim compensation. Dependency is not basic criteria for relief in accident cases to the claimants if they are a legal heir or legal representative of the deceased.

Legal Representative of Owner of Vehicle

Claimants before this Court and tribunal are the legal representatives of the deceased as they are husband and children who fall in Class-I heirship.

Hence, in view of the above, the deduction of compensation of claimant 1 by the tribunal cannot be sustained as he was claiming as an heir and not the driver or injured.

Compensation

Relying on the decision of the Supreme Court in Laxmidhar Nayak v. Jugal Kishore Behera, (2018) 1 SCC 746, it was held that the income of the housewife in the year 2009 would be Rs 4,000 per month, the amount would be Rs 48,000 per annum, to which as the deceased was 38 years of age, 25% will have to be added as she was self-employed.

Hence, the appeal was partly allowed and the Judgment and Decree passed by the tribunal shall stand modified to the aforesaid extent.

While parting with the judgment, the Court held that a direction is required to be given to all tribunals in the State that where there are multiple claims, MACT should place all the matters before the same Tribunal and the same tribunal should consolidate the matter and decide so that the situation as it arose in the present matter may not arise.[Dharam Veer v. Kamal Singh, 2020 SCC OnLine All 1404, decided on 26-11-2020]


Advocates who appeared for the matter:

Counsel for Appellant:- Mohan Srivastav
Counsel for Respondent:- Rahul Sahai, K.K.D

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Alok Aradhe and H.T. Narendra Prasad JJ., allowed the appeal stating that the Tribunal is not expected to take or adopt a nicety of a civil or criminal case.

The facts of the case are that the deceased was proceeding on his motorcycle on Mysuru Road when he was dashed against by a Hero Honda motorcycle and due to the impact he fell down, sustained injuries and finally succumbed to them. The claimants filed a petition under Section 166 of Motor Vehicle Act, 1988 i.e. MV Act for want of compensation which was rejected on grounds of failure to prove the claim before the Tribunal. Aggrieved by the said impugned order, present appeal has been filed.

Counsel for the appellants submitted that the Tribunal has erred in the impugned judgment because the accident occurred due to rash and negligent riding of the Hero Honda motorcycle by its rider and the Tribunal failed to appreciate the eyewitnesses.

Counsel for the respondents submitted that the Tribunal is justified in dismissing the claim petition because after considering the evidence of the parties and the materials placed on record it was clear that the deceased died due to self fall and the offending vehicle is not involved in the accident.

The Court relied on the judgment Mangla Ram v. Oriental Insurance Company Ltd., (2018) 5 SCC 656 wherein it was observed that:

“In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant eyewitness was discarded by the Tribunal and that the respondent, in that case, was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied.”

The Court further observed that under the Motor Vehicles Act, the standard of proof is much below than what is required in a criminal as well as in the civil case.

The Court thus held that the impugned judgment was decided only on the basis of the police report and failed to consider the evidence of the eyewitnesses. Hence, the Court remanded the matter for reconsideration.

In view of the above, appeal was allowed.[Rukmini v. N.C. Chandru, MFA No. 332 of 2017, decided on 02-11-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): V. K. Jain (Presiding Member) while addressing the present matter observed that,

A negligent act such as driving a motor cycle without taking the orientation desired by its owner can never be equated with an intentional self-injury if driving the vehicle result in an accident.

Personal Accident Insurance (Individual) Policy

Deceased had obtained the above-stated policy from the OP whereunder a sum of Rs 58,75,000 was payable by the insurer in case he was to die in an accident.

In an accident, the Late Mr Sunil Seth died after. Complainant lodged a claim in the above-referred policy. Surveyor concluded that the death of Sunil Seth took place in a road accident and hence the claim may be processed as per the terms and conditions of the policy and its coverage.

Though the Insurer repudiated the claim vide letter dated 20-07-2017, which reads as follows:

“The claim is repudiated as per Exception No. 5(a) of the policy which stands as “The Company shall not be liable under this policy for Payment of compensation in respect of Death, Injury or Disablement of the Insured from Intentional self-injury.”

On being aggrieved with the repudiation of the claim, the complainant approached the Commission.

Pecuniary Jurisdiction

OP resisted the complaint stating that the Commission lacked pecuniary jurisdiction to entertain the consumer complaint.

In accordance with Section 21 of the Consumer Protection Act, 1986, the Commission has pecuniary jurisdiction to entertain the consumer complaint where the value of the goods or services and the compensation claimed by the complainant exceeded Rs 1,00,00,000.

Commission did have requisite pecuniary jurisdiction to entertain the consumer complaint.

Further, the Commission opined that in no case, whatsoever, an insurer can be asked to pay any amount beyond the sum insured to the complainant. Whether any compensation, over and above, the sum insured should be awarded in a given case or not would depend upon the facts and circumstances of the individual case.

Therefore, it would be difficult to say that merely because the sum insured was only Rs 58,75,000 this Commission would not have pecuniary jurisdiction to entertain the complaint.

In view of the Supreme Court decision in Galada Power and Telecommunication Ltd. v. United India Insurance Company Ltd., (2016) 14 SCC 161, the insurer cannot be allowed to contest the consumer complaint beyond the ground on which the claim has been repudiated.

According to the repudiation letter, the claim was repudiated solely on the ground that Eagle Rider who had given the motorcycle to its pillion rider Neeraj Sethi on hire had advised the person driving the motorcycle to undergo an orientation and the decease did not go such orientation, hence this was a case of intentional self-injury.”

The use of the term ‘intentional self-injury’ in the insurance policy would mean that the person who suffered the injury must have wanted such an injury caused to him.

Ordinarily, this would happen in a case where a person either wants to commit suicide or he wants to cause injury to himself.

A person driving a high-end motorcycle without taking the orientation which the owner of the vehicle wants to be taken by the driver of the vehicle may be said to be negligent if he drives the vehicle without such an orientation, but it can never be said that his intention behind driving such a motorcycle without orientation, desired by its owner, was to cause injury to himself.

Hence, the present case was not covered under exception no. 5(a) of the policy.

OP shall pay a sum of Rs 58,75,000 to the complainant along with compensation in form of simple interest on that amount @ 8% p.a. w.e.f. 6 months from the date of lodgement of the claim till the date of payment. Rs 50,000 as cost of litigation to be paid by the OP. [Mala Sahni Seth v. New India Assurance Co. Ltd., 2020 SCC OnLine NCDRC 461, decided on 08-10-2020]

Case BriefsHigh Courts

Bombay High Court: Anil S. Kilor, J., decided an appeal wherein the claim petition was rejected by the Motor Accident Tribunal on certain grounds.

FACTS

Deceased Baby was traveling in a jeep owned by respondent 1. It has been stated that the vehicles’ driver was driving at a high speed and in a negligent manner resulting in a violent dash to a tree.

In view of the above incident, the husband of the deceased Baby and her two sons filed a claim petition under Section 166 of the Motor Vehicle Act claiming Rs 5,00,000 towards compensation.

Insurance Company |Breach of Condition of Insurance Policy

Respondent 2 i.e the Insurance Company resisted the claim by filing a written statement on the grounds that the driver of the offending vehicle was not holding a valid motor driving license on the date of the accident and the jeep was insured for private use but it was used for commercial purpose in breach of a condition of the Insurance policy.

Since the claim petition was rejected by the tribunal, the present appeal was filed.

Counsel for the appellants, P.R. Agrawal; K.B Zinjarde, Counsel for the legal representatives of respondent 1 owner of the offending vehicle and S.K. Pardhy, Counsel for the Insurance Company.

Analysis and Decision

Bench on perusal of the grounds of rejection by the tribunal examined the correctness and legality of the same.

Ground 1:

Claim is based on falsity

Registration of births, those who born in remote areas like the deceased Baby or the appellant 1, have a lesser likelihood of registration of their birth and possessing a birth certificate.

In absence of schools in remote tribal areas till the recent past, it was not possible to take education for many. Hence no school record in respect of date of birth is also available.

Therefore, there is a practice of mentioning the approximate age.

The Court found no ill-intention of the claimants in mentioning the age of the deceased as 38 years.

Hence, the rejection of the claim petition by the Tribunal on the ground that the case of the claimant is based on falsity is erroneous.

Ground 2:

Husband of the deceased Baby, being an earning member, cannot claim compensation for death of his wife in the accident

The deceased was a housewife, therefore, claimants have lost personal care and attention given by the deceased.

A housewife holds the family together. She is a pillar support for her husband, a guiding light for her child/children and harbor for the family’s elderly.

In regard to the importance of the role of a housewife, High Court referred to the decision of the Supreme Court in Arun Kumar Agrawal v. National Insurance Company Ltd., (2010) 9 SCC 218.

Further, the Court stated that,

“…the loss to the husband and children consequent upon the death of the housewife or mother has to be computed by estimating the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife and further for loss of gratuitous and the multifarious services rendered by the housewives for managing the entire family.”

Hence, the claim of the claimants on the ground that the husband and the major sons are not entitled to claim compensation on the death of the wife or mother, appears to be in ignorance of the well-established principals of law.

In Court’s opinion, the deceased being a woman and mother of two children would have also contributed her physical labour for the maintenance of the household and also taking care of her children. Therefore, being a labourer and maintaining her family, her daily income should be fixed at Rs 200 per day and Rs 6000 per month.

Ground 3:

The private vehicle was used for commercial purposes in breach of conditions of the Insurance Policy moreover the driver was not holding a valid licence.

In view of the Supreme Court decision in S. Iyyapan v. United India Insurance Company Ltd., 2013 (6) Mh. L.J. 1 and this Court’s decision in Dnyaneshwar v. Raju, 2020(1) Mah. Law Journal 377, wherein it was held that it is the vicarious liability of the owner of the vehicle to pay compensation even if due to rash and negligent driving of the driver, the accident had occurred.

Thus, in view of the above-stated position, ground 3 was also rejected.

DECISION

High Court held that it is the statutory duty of the Insurance Company to pay the amount of compensation even in breach of a policy condition.

Court directed the Insurance Company to pay the compensation amount in three months.

In view of the aforesaid terms, the appeal was allowed. [Rambhau v. Shivlal, 2020 SCC OnLine Bom 935, decided on 17-09-2020]

Case BriefsHigh Courts

Madras High Court: S.M. Subramaniam, J., while determining the compensation in the cases of accident, observed that,

“…job of Homemaker can never be compared with employee or employment and the importance and the values are also to be considered by the Courts, while assessing the compensation.”

Claimant who is the appellant has sought enhancement of compensation in the present appeal.

Claimant sought who sustained grievous injuries resulted in permanent disability.  A Bus had hit the appellant/claimant when she was standing near the bus stand to catch a bus, causing her grievous injuries in the back along with other serious injuries.

Permanent Disability

Perusal of the nature of injuries revealed that the appellant/ claimant sustained not only grievous injuries but resulted in permanent disability and she is continuously taking treatment for that.

Tribunal concluded that due to the rash and negligent driving of the bus driver, the grievous injuries were caused to the appellant.

A monthly income of the appellant was fixed as Rs 4,500 ad accordingly a sum of Rs 4, 86, 000 was granted towards loss of income by the Tribunal.

Analysis & Decision

Court noted that the appellant/claimant is unable to support the family and the husband and children have to take care of her. Undoubtedly, no document has been produced to establish employment as well as the income of the appellant/claimant.

 “…as a woman at home is the Homemaker and for this purpose, the fixation of income for grant of compensation, assessment can be made considering the appellant/claimant as to the Homemaker.”

It happens the claimants are advised either by the relatives, friends, or counsels to say as if they are employed and earning and in order to get compensation, the claimants are ill-advised to provide such facts before the Tribunal in their claim petitions.

In the present matter, there is no dispute between the parties that the appellant is a Homemaker with husband and children. Thus, the tribunal ought to have drawn factual inference in the absence of any material to establish employment and income.

High Court found the amount of compensation fixed to be inadequate and improper.

Bench also emphasized on the importance of “Homemakers”. Thus, the importance, value as well as the materialistic factors are to be considered, while fixing the compensation as far as the Homemakers are concerned.

Keeping in view the amount of fairness to be adopted in the cases of Homemakers, we cannot forget that the Homemakers are the Nation Builders.

If the Homemaker died, the impact would be unmeasurable and the family will become scattered. It would be very difficult to cope with the family.

Therefore, homemakers are standing on a higher pedestal than that of the earning member in a family. Thus, mitigating factors, family status, the income of the husband and other aspects are to be considered while fixing the compensation for Homemakers.

Bench stated that it has no hesitation in arriving at the conclusion that the permanent disability caused to the appellant/claimant would affect not only her family life but also a great loss to the entire family.

Tribunal has mechanically on the basis of proof for employment as well as income decided the compensation without taking the aspects in the right perspective.

Once the fact of an accident is established and the Insurance Policy Coverage is not disputed and negligence is decided, then the claimants are entitled to ‘Just Compensation’.

Enhancement of Compensation

Hence, it was held that the compensation of Rs 4,86,000 awarded by the Tribunal towards loss of income is to be modified. This apart, the compensation granted under the head of ‘Pain and Sufferings’ is also very less, which is to be enhanced as the appellant/claimant has suffered continuously, and therefore, the enhancement is to be granted to the appellant/claimant.

Total compensation of Rs 14,07,000 with an interest at the rate of 7.5% per annum is to be granted to the appellant/claimant. [Bhuvaneswari v. Mani, 2020 SCC OnLine Mad 2163, decided on 01-09-2020]

Case BriefsHigh Courts

Delhi High Court: Navin Chawla, J., while addressing a petition with regard to an accident caused due to the non-illuminated and unmanned police barricades held that,

“While the respondents claims and it is accepted that placing of the barricades at various places in the city is for public good, at the same time, it casts a duty on the respondent 2 to ensure that they do not become a cause for accidents.”

Petitioner 1 a student of Delhi University had suffered a road accident as informed by a police constable to Petitioner 2.

An FIR was registered against petitioner 1 by respondent 2 under Sections 279 and 337 of Penal Code, 1860 for rash and negligent driving.

Though it is disputed that petitioner 1 suffered an accident after colliding with barricades . These barricades were chained to cordon off the road/street completely.

Petitioner 1 had tried to slip through the gap in between the barriers and owing to the speed at which the vehicle was travelling, he was unable to spot the chain linking the barricades.

It is further asserted that as no helmet or any protective gear of any sort was found at the site of the accident, the petitioner 1 was in violation of the provisions of Section 129 of the Motor Vehicles Act, 1988.

It is thus asserted that the accident occurred due to contributory negligence of petitioner 1.

Disputing the above stated, photographs of the site were placed on record from which it could be seen that the barricades were placed at a spot that they could not be visible from afar.

Bench Analysis and Decision

Clause 6 of the Standing Order for “Procurement, Maintenance, Repairs and Operational Usage of Delhi Police Mobile Barricades? mandates that all barricades must have necessary fluorescent paint as well as blinkers so that they are visible from a long distance.

Clause 10 of the Standing Order further mandates that the barricades, under no circumstances, should be left unmanned.

Bench observed that from the photographs placed in record that place where the barricades were kept was not properly lighted. It is not shown that the barricades had adequate reflectors or blinkers so as to make them visible from a long distance. They were also unmanned.

Further the bench added that, merely because no helmet was shown to have been recovered from the site, cannot lead to a conclusion that the petitioner 1 was not wearing a helmet at the time of the accident or was driving his motorcycle at a high speed or rashly.

Thus, petitioners are held entitled to claim damages for negligence and failure of respondent 2 in discharging its duty.

A total compensation of Rs 75 lacs is found just and payable to the petitioners by the respondent 2. [Dheeraj Kumar v. Union of India, WP(C) No. 10799 of 2016, decided on 18-05-2020]

Hot Off The PressNews

Supreme Court: The Court has asked CBI to investigate within 7 days the mysterious case of the accident in which the Unnao rape survivor was seriously injured along with her lawyer while her two aunts were killed in Rae Bareli on Sunday. The investigation is to be conducted by Secretary General under supervision of sitting SC judge nominated by CJI, to ascertain whether there was any lapse/negligence by registry officials in delay in processing letter of Unnao rape victim’s mother to CJI.

Ranjan Gogoi, CJ gave the direction to the agency after dismissing Solicitor General of India Tushar Mehta’s plea for a month’s time for completing the probe. CJI said,

 “A month? Probe should be completed within 7 days in the accident case, however, as an exception, CBI can take another week, but in no circumstance shall the probe extend beyond a fortnight.

The Court has transferred the trial of all the cases related to Unnao rape incident from Uttar Pradesh to Delhi and the designated judge in Delhi will commence the trial on day-to-day basis and complete the trial within 45 days.

As an interim measure, the Court has directed the UP government to pay Rs 25 lakh as compensation to the victim and also directed that security & protection be granted to the victim, her lawyer, mother of the victim, the four siblings of the victim, her uncle, and immediate family members in the village in Unnao.

Earlier in the day, the CJI ordered the CBI to present the status of the investigations after the agency was given charge of the probe into the accident and the FIR that included murder charges against rape accused and BJP MLA Kuldeep Sengar.
When the SG said the Investigating Officer was out of station and sought time till tomorrow morning for the agency to submit a report, the CJI dismissed it asking CBI to depute some ‘responsible’ official who can gather the information over phone and present it to the court. CBI Joint Director Sampat Meena, a woman officer, appeared before the bench and gave the status of the probe into the two cases.

On July 28, a truck rammed into the vehicle in which the Unnao rape survivor, her counsel and two aunts were travelling to Raebareli. While she and her lawyer sustained grievous injuries, her aunts were killed on the spot. The Unnao rape
survivor and her lawyer, who is being treated at King George’s Medical University are stable, the hospital said on Wednesday.

The Uttar Pradesh Police filed a case of murder against BJP MLA Kuldeep Singh Sengar and nine others in connection with the accident. Meanwhile, the BJP has expelled MLA Kuldeep Singh Sengar amidst the controversy.

(Source: ANI)