Delhi High Court

The Oriental Insurance Co.Ltd. vs Om Prakash & Ors. on 26 September, 2008

Author: V.B.Gupta

*      HIGH COURT OF DELHI : NEW DELHI

    MAC App. No.441/2008& CM No.11237/2008

%            Judgment reserved on: 9th September, 2008

             Judgment delivered on: 26th September, 2008

The Oriental Insurance Co. Ltd.
Regional Office No.1, 88, Janpath
New Delhi 110001.                            ....Appellant

                      Through: Mr. R.B. Shami, Adv.

                        Versus
1. Om Prakash S/o. Sh. Hukam Chand

2. Smt. Murti W/o. Sh. Om Prakash
   Both R/o. H. No.16/1701,
   Sangam Vihar, New Delhi Claimants

3. Sukhbir Singh S/o. Sh. Gurdial Singh
   Permanently Resident of Vill. Hasanpur
   Post Fauvar, PS: Machivada
   Distt. Lidhiana, Punjab.   Driver

4. Paramjeet singh S/o. Sh. Harbans Singh
   R/o. H. No.21, Mini Market, DDA Flats
   Kalakaji, New Delhi        Owner    ...Respondents.

                          Through:Nemo

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                        Yes

2. To be referred to Reporter or not?                     Yes



MAC App.No.441/2008                              Page 1 of 15
 3. Whether the judgment should be reported
   in the Digest?                                      Yes

V.B.Gupta, J.

The appellant/Insurance Company has filed

present appeal under Section 173 of the Motor

Vehicles Act, 1988 (for short as „Act‟) against the

award dated 3rd May, 2008 passed by Ms. Deepa

Sharma, MACT (for short as „Tribunal‟), New Delhi.

2. Brief facts of this case are that on 28th October,

2003, respondent No.1 was coming on his scooter

No.DL-4-SC-1977 along with his brother Phol Singh

and his daughter Riya, aged 3½ years, who was

standing on scooter in front of respondent No.1. While

coming from Janak Puri and going towards Sangam

Vihar via alof palame Marg at about 8.15 a.m., when

they reached Sector 3, Masjid, R.K. Puram Red Light,

respondent No.3/Sukhbir Singh came driving taxi

No.DL-IT-3078 in a rash and negligent manner and at a

high speed, and overtook the scooter and suddenly

applied brakes. Due to sudden application of brakes

by respondent No.3, the scooter of respondent No.1

got hit at the back of the taxi and as a result thereof,

his daughter sustained injuries as the handle of the

scooter struck in her chest. She was taken to the

Hospital South Point, GK-II, Masjid Moth. After giving

first aid, she was referred to Govt. hospital and was

brought to Safdarjung hospital where she was declared

brought dead. The accident has taken place due to

rash and negligent driving on the part of respondent

No.3.

3. The offending vehicle was owned by respondent

No.4/Paramjeet Singh and it is insured with

appellant/Insurance Company.

4. Vide impugned award, the Tribunal granted

compensation of Rs.2,75,000/- to respondents No.1 and

2, who are the claimants.

5. Respondents owner/driver filed joint written

statement before the Tribunal stating that respondent

No.3/driver of taxi was having a valid driving licence at

the relevant date and time. It is not disputed that

respondent No.4 was the owner of offending taxi. The

factum of accident has been admitted. However, it is

stated that the taxi was going ahead and respondent

No.1 has failed to maintain the minimum distance from

the taxi. The taxi never overtook the scooter and while

the taxi had halted, respondent No.1 could not apply

brakes of his scooter and thus he could not control the

scooter, which hit the back of the taxi and

consequently, there was impact on the chest of little

girl and thus accident occurred due to negligence on

the part of respondent No.1.

6. Appellant/Insurance Company has admitted the

factum of accident. However, it is stated that the

driver of the taxi was not having any valid and effective

driving licence for particular category of the vehicle

which he was found to be driving at the time of alleged

accident, therefore, the appellant is not liable at all on

account of breach of terms and conditions of the

Insurance policy.

7. It has been contended by the learned counsel for

the appellant that the present claim petition has been

filed under section 163A of the Act and the Tribunal

could not have passed award for more amount than the

amount fixed as per Second Schedule of the Act. The

Tribunal, wrongly relied upon the decisions of Apex

Court and High Courts and passed order under section

166 of the Act in the claim petition filed under section

163A of the Act.

8. The tribunal has also failed to appreciate that the

amount of compensation arrived at as per Second

Schedule under section 163A of the Act, has to be

reduced by 1/3rd in consideration of the expenses

which the victim would have incurred towards

maintaining herself had she been alive.

9. Further, the Tribunal has failed to appreciate that

while passing award under section 163A read with

Second Schedule of the Act, there is no provision for

awarding Rs.50,000/- on account of loss of child and

pain & sufferings to the parents/claimants.

10. Learned counsel for the appellant has also relied

upon the decisions of Oriental Insurance Co. Ltd. v.

Meena Variyal and others, 2007 ACJ 1284,

Oriental Insurance Co. Ltd. v. Rajwati Devi and

others, 2008 ACJ 802 and New India assurance

Co. Ltd. v. Shanker Lal and others, 2007 ACJ 1099

in support of its contentions.

11. Before delving on the contentions raised by the

learned counsel for the appellant, it would be

appropriate to reproduce the relevant provisions of the

Act so as to properly appreciate the controversy

involved in the present appeal.

12. Section 163A of the Act reads as under;

"163A. Special provisions as to payment of compensation on structured formula basis.

(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or

instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.

Explanation.- For the purposes of this sub-section, "permanent disability"

shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).

(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."

13. Section 163B of the Act reads as under;

"163B. Option to file claim in certain cases.

Where a person is entitled to claim compensation under section 140 and section 163A, he shall file the claim under either of the said sections and not under both."

14. The contention of the learned counsel for the

appellant that the Tribunal should have awarded the

compensation as laid down in the Second Schedule of

the Act, appears to be attractive but at the same time

does not appear to be justified.

15. Section 163A (3) of the Act provides that the

Second Schedule of the Act is to be revised from time

to time keeping in view the cost of living by an

appropriate notification in the official gazette by the

Central Government but since the time of its insertion

w.e.f. 14.11.1994, no revision has taken place even

after lapse of about more than 13 years.

16. In Oriental Insurance Co. Ltd. v. Rajwati Devi

and others (supra), as cited by the counsel for the

appellant, this Court has held that the tribunal after

treating a claim application as under section 163A of

the Act has to determine compensation strictly in

accordance with Second Schedule of the Act. This

Court further observed that;

"Second Schedule was appended to the Motor Vehicles Act in the year 1994. Unfortunately, government has not exercised its power provided under clause (3). Thus, Second Schedule remains unamended since the date of its inception till today. I note that from year 1994 today, inflation has gone up by 4 per cent to 6 per cent each year. Keeping in view inflation and the rise in cost of living and the fact that the government has not amended the Second Schedule, I think it appropriate to give benefit of 25 per cent increase in the income even as per the Second schedule."

17 To the similar effect, the Apex Court in Oriental

Insurance Co. Ltd. v. Meena Variyal and others

(supra), as cited by the counsel for the appellant, has

held that the victim of an accident or his dependants

have an option either to proceed under section 166 of

the Act or under section 163A of the Act. Once they

approach the Tribunal under section 166 of the Act,

they have necessarily to take upon themselves the

burden of establishing the negligence of the driver or

owner of the vehicle concerned. But if they proceed

under section 163A of the Act, the compensation will

be awarded in terms of the Schedule without calling

upon the victim or his dependants to establish any

negligence or default on the part of the owner of the

vehicle or the driver of the vehicle.

18. However, as per Section 168 of the Act, it has to

be borne in mind by the Tribunal that "just

compensation" has to be made in the facts and

circumstances of each case.

19. In this regard, the Apex Court also observed in

The Divisional Controller, KSRTC v. Mahadeva

Shetty & Anr., JT 2003 (6) SC 519, as under;

"It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which to it appears to be "just". It has to be borne in mind that compensation for loss of

limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance with the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life, which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation

has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non- arbitrary. If it is not so, it cannot be just. (See Helen C. Rebello v. Maharashtra State Road Transport Corporation & another, II (1998) ACC

512.)"

20. Thus, in view of the discussion, the Tribunal has

rightly awarded the compensation on account of loss of

dependency as per Second Schedule of the Act.

21. As regards the contention of awarding

compensation on account of loss of child and pain &

sufferings, in Shyam Narayan v. Kitty Tours Travels

and Ors, IV (2005) ACC 1, this Court awarded

compensation of Rs. 50,000/- on account of loss of

company of the child as also pain and suffering

suffered by them as a result of the untimely death of

baby Chanda.

22. In this regard, the Apex Court in R.O.

Hattangadi v. Pest Control (India) Pvt. Ltd., AIR

1995 SC 755, has laid down the broad principles as

under;

"Broadly speaking, while fixing the amount of compensation payable to a victim of an accident the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant:(i) medical attendance; (ii ) loss of earning of profit up to the date of trial;

(iii) other material loss. So far as non- pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e. on account of injury the

claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."

23. However, no amount of compensation can

compensate the loss of a life or can bring back

happiness in the lives of the dependant family

members. In the present case, the deceased was a

child of 3 ½ years and the parents had undergone lot

of pain and sufferings on account of their loss of child.

24. Thus, in view of the facts of the case, a sum of

Rs.50,000/- on account of pain and sufferings as

awarded by the Tribunal to the claimants is just, fair

and equitable.

25. In view of the above discussion, I do not find any

infirmity or illegality in the impugned judgment passed