New India Assurance Co. Ltd. vs Amrita Devi And Ors.
2009 Latest Caselaw 4630 Del

1
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +       MAC.APP.No.243/2009



%                                 Date of decision: 12th November, 2009



      NEW INDIA ASSURANCE CO. LTD.             ..... Appellant
                    Through : Mr. Pankaj Seth, Adv.

                      versus

      AMRITA DEVI AND ORS.                    ..... Respondents
                    Through : Mr. J.K. Singh, Adv.
                              for R-1 to 3.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?               YES

3.      Whether the judgment should be                       YES
        reported in the Digest?


                               JUDGMENT (Oral)

1. The appellant has challenged the award of the learned

Tribunal whereby compensation of Rs.7,10,460/- has been

awarded to the appellant.

2. The accident dated 19th November, 2003 resulted in the

death of Girish Kumar. The deceased was survived by his widow,

minor son and father who filed the claim petition before the

learned Tribunal.

3. The deceased was traveling on a cycle rickshaw which was

hit by the offending truck bearing No.HR-38B-1770. The intensity

of the hit was so high that the deceased was thrown away from

rickshaw on the road and he suffered fatal injuries. The deceased

was aged 34 years at the time of the accident and was working

as Mason (Raj Mistri) and had also some income from the grocery

shop and agricultural income. However, in the absence of any

documentary evidence to prove the income of the deceased, the

learned Tribunal took the minimum wages of Rs.3,115/- per

month, added 50% towards the increase due to inflation and rise

in price index, deducted 1/3rd towards the personal expenses of

the deceased and applied the multiplier of 17 to compute the loss

of dependency at Rs.6,35,460/-. Rs.50,000/- has been awarded

towards loss of love and affection and Rs.25,000/- towards

funeral expenses. The total compensation awarded to the

appellant is Rs.7,10,460/-.

4. The appellant has challenged the negligence of the driver of

the offending vehicle and the quantum of compensation awarded

to claimants/respondents No.1 to 3.

5. The appellant has not taken the permission under Section

170 of the Motor Vehicles Act and, therefore, cannot challenge

the award of the learned Tribunal. With respect to the negligence

and quantum of compensation, it is well settled that in the

absence of having taken over the defence under Section 170 of

the Motor Vehicles Act, the Insurance Company cannot challenge

the award on any ground except those mentioned in

Section 149(2) of the Motor Vehicles Act. Reference in this

regard be made to the judgment of the Hon'ble Supreme Court in

the case of National Insurance Co. Ltd. vs. Nicolletta

Rohtagi, (2002) 7 SCC 456 and Shankarayya vs. United

India Insurance Co. Ltd., (1998) 3 SCC 140 where it has been

held that in the absence of defence as envisaged under Section

170 of the Motor Vehicles Act being taken over by the insurance

company, the appeal filed by the insurance company is not

maintainable.

6. Notwithstanding the bar of Section 170 of the Motor

Vehicles Act, the appellant has no case on merits. This is a case

of res ipsa loquitur where the deceased was hit by the offending

truck and he fell down from the rickshaw and suffered fatal

injuries. The loss of dependency of the deceased has been

computed according to the law laid down by the Hon'ble Supreme

Court in the case of Sarla Verma Vs. Delhi Transport

Corporation, 2009 (6) Scale 129. The learned Tribunal has

not awarded any compensation for loss of consortium and loss of

estate. However, the amount awarded for loss of love and

affection and funeral expenses is on a higher side and is treated

to include the compensation for loss of estate and loss of

consortium.

7. For all the aforesaid reasons, the appeal is dismissed.

8. The appellant has deposited the entire award amount with

the learned Tribunal which has been released to

claimants/respondents No.1 to 3. In that view of the matter, the

statutory amount of Rs.25,000/- be refunded to the appellant

through counsel.

9. Copy of this order be given 'Dasti' to learned counsel for

both the parties under signature of Court Master.

J.R. MIDHA, J NOVEMBER 12, 2009 mk