United India Insurance Co. Ltd. vs Khasti Devi & Ors.
2009 Latest Caselaw 4352 Del

41
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +       MAC.APP.No.485/2007

%                                  Date of decision: 27th October, 2009


      UNITED INDIA INSURANCE CO. LTD.           ..... Appellant
                     Through : Mr. K.L. Nandwani, Adv.

                      versus

      KHASTI DEVI & ORS.                     ..... Respondents
                     Through : Mr. Sanjeev Mahajan, Adv.
                               for R-1 to 7.

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.12,44,400/- has been

awarded to claimants/respondents No.1 to 7.

2. The accident dated 24th November, 2004 resulted in the

death of Khem Singh. The deceased was survived by his widow

and six daughters who filed the claim petition before the learned

Tribunal.

3. The deceased was aged 47 years at the time of the accident

and was working as Room Attendant with the Delhi High Court

drawing a salary of Rs.9,200/-. The learned Tribunal added 50%

towards future prospects, deducted 1/3rd towards personal

expenses and applied the multiplier of 11 to compute the loss of

dependency at Rs.12,14,400/-. Rs.20,000/- has been awarded

towards loss of consortium and Rs.10,000/- towards funeral

expenses. The total compensation awarded is Rs.12,44,400/-.

4. The amount awarded by the learned Tribunal is on a lower

side. According to the recent judgment of the Hon'ble Supreme

Court in the case of Sarla Verma Vs. Delhi Transport

Corporation, 2009 (6) Scale 129, the appropriate multiplier at

the age of 47 years is 13 and the appropriate deduction towards

the personal expenses of the deceased who has left behind more

than six dependants is 1/5th. The learned Tribunal has also not

awarded any compensation towards loss of love and affection

and loss of estate.

5. Following the aforesaid judgment of the Hon'ble Supreme

Court, the claimants are entitled to compensation of

Rs.14,92,608/- [(Rs.9,200 + 30% of Rs.9,200) x 4/5 x 12 x 13].

However, the claimants have not filed any cross-objections even

after being pointed out on the last date of hearing. The learned

counsel for the claimants submit that they are not interested to

seek any enhancement in the award amount.

6. The learned counsel for the appellant has challenged the

impugned award on the short ground that the negligence of the

driver of the offending vehicle has not been proved.

7. The appellant has not taken over the defence of the driver

and owner of the offending vehicle under Section 170 of the

Motor Vehicles Act. The learned counsel for the appellant

submits that permission under Section 170 of the Motor Vehicles

Act is not required to challenge the findings of negligence.

8. 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.

9. Notwithstanding the bar of Section 170 of the Motor

Vehicles Act, the appellant has no case on merits. The deceased

was crossing the road when he was hit by the offending vehicle.

The driver of the offending vehicle was prosecuted under Section

279/304-A and the charge-sheet was filed against him. Although

the driver of the offending vehicle did not appear in the witness

box, the claimants placed on record the certified copies of FIR,

site plan, seizure memo, mechanical inspection report, post-

mortem report and the charge-sheet which clearly point out to

the negligence of the driver of the offending vehicle.

10. The learned counsel for the appellant submits that the said

documents have not been proved in accordance with law.

Section 168 of the Motor Vehicles Act provides that the Tribunal

shall conduct an inquiry and for conducting such an inquiry, the

learned Tribunal shall follow such summary procedure as it thinks

fit. The perusal of the award shows that the learned Tribunal has

conducted an inquiry in a meaningful manner and has arrived at

the finding of negligence. Even otherwise, this is a case of res

ipsa loquitur where the negligence is clear from the documents

on record.

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

12. The appellant has paid the entire award amount which has

been received by the claimants. In that view of the matter, the

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

appellant within a period of four weeks.

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

parties under signature of Court Master.

J.R. MIDHA, J OCTOBER 27, 2009 aj