New India Assurance Co. Ltd. vs Som Nath & Others
2011 Latest Caselaw 3936 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Judgment reserved on : 10.08.2011
                                  Judgment delivered on : 12.08.2011


+            MAC APPEAL No.8/2011

NEW INDIA ASSURANCE CO. LTD.         ...........Appellant
                 Through: Mr.K.L. Nandwani, Advocate

                   Versus

SOM NATH & OTHERS                                   ..........Respondents
                 Through:              Mr.Sanjeev Mehta, Advocate
                                       for the claimants.
                                       Mr. Harish Gupta, Advocate
                                       for respondent No. 4.

             MAC APPEAL No.83/2011

SOM NATH SHARMA & ANOTHER            ...........Appellants
                 Through: Mr.Sanjeev Mehta, Advocate

                   Versus

NARESH KUMAR & OTHERS                              ..........Respondents
                 Through:              Mr.K.L. Nandwani, Advocate
                                       for the Insurance company



CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

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

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

MAC APPEAL Nos.8/2011 & 83/2011                               Page 1 of 6
 INDERMEET KAUR, J.

1 These are two appeals which have arisen out of the Award

dated 14.09.2010 wherein compensation in the sum of `3,57,000/-

along with interest @ 7.5% per annum had been awarded in

favour of the claimants from the date of filing of the petition till

realization.

2 The first appeal i.e. MAC APPEAL No. 8/2011 has been filed

by the Insurance Company. Admittedly permission under Section

170 of the Motor Vehicle Act (MVA) has not been taken by the

Insurance Company before filing this appeal. The contention of

the appellant/Insurance Company is that no such permission is

required. The grounds of appeal as is evident from the body of the

appeal is that vehicle in question i.e. Qualis was not involved in

the accident; contention is that this has not been correctly

appreciated by the Tribunal; the amount awarded is exorbitant; it

is on the higher side; only a just and fair compensation was to be

awarded; claimnts could not have been enriched; Award has

accordingly been challenged on the aforenoted grounds. In the

body of the appeal itself, it has been stated that permission under

Section 170 of the MVA is not required.

3 Learned counsel for the non-applicants/claimants submits

that appeal of the appellant is not maintainable in view of

mandatory permission which is required under Section 170 of the

MVA.

4 Under Section 170 of the MVA, the insurer has no right to

file an appeal on grounds other than those available to it under

Section 149 (2) of the MVA. Section 149(2) of the MVA is a

provision engrafted to ensure that the victims of motor vehicle

accidents are compensated and protected; Insurance Company

cannot escape from its liability to pay compensation on any

exclusionary clause in the insurance policy except those

conditions which are specified under Section 149 (2) of the MVA;

only those defences which are covered under Section 149 (2) are

available to the insurer. In the instant case as is evident from the

body of the appeal the claim of compensation has been

challenged; this could not have been permissible unless

permission under Section 170 of the MVA had been obtained. In

the absence of this procedure having been followed, the appeal

filed by the Insurance Company is not maintainable. This Court is

fortified in this view in view of judgment delivered by another

Bench of this Court in MAC APPEAL No. 560/20006 dated

28.03.2008 in the case of M/s National Insurance Co. Ltd. Vs. Mrs.

Ashoka Devi and Others. The appeal of the Insurance Company is

liable to be dismissed on this ground. It is accordingly dismissed.

5 The second appeal i.e. MAC APPEAL No. 83/2011 is an

appeal filed by the claimants seeking enhancement of

compensation. The compensation awarded as noted supra is in the

sum of `3,57,000/- along with interest @ 7.5% per annum. The

claimants are the parents of the victim Kunal @ Sonu. The

deceased was coming on a motor cycle along with two persons

when he was hit by Qualis No.DL-6CG-6601 which had been

driven in rash and negligent manner; Qualis had fled away from

the scene; one eye witness Bhagat Singh had been examined. It

was not refuted that the Qualis was insured with the Insurance

Company; contention of the Insurance Company was that this

vehicle was not involved in the accident; however, since the

appeal filed by the Insurance Company has been dismissed, this

Court need not examine or deal with this argument.

6 The claimants have assailed the compensation on the

ground that the multiplier of 13 has been applied when as per the

structured formula contained in the second Schedule of the MVA

which is applicable to a claim petition under Section 163-A of the

MVA, the multiplier of 17 should have been applied. This

submission of learned counsel for the appellant is borne out. The

victim was aged 23 years on the date of incident; age of victim

was relevant to apply the multiplier in the case of a claim under

Section 163-A of the MVA. The multiplier from 13 is accordingly

modified to 17.

7 The next contention of learned counsel for the appellant is

that although the minimum wages of the victim had been taken

into account at `3,300/- per month yet the benefit of price index

rise and cost of inflation had not been taken into account.

Reliance has been placed upon the judgments reported in 2008

ACJ 2182 (Delhi) Kanwar Devi Vs. Bansal Roadways, 2007 ACJ 2165

(Delhi) Lekhraj Vs. Suram Singh and 2009 ACJ 1921 (Delhi) National

Insurance Co. Ltd. Vs. Renu Devi to substantiate the submission

that 50% increase has to be considered as price rise and judicial

notice of the fact should be taken into account that minimum

wages are likely to be doubled in the next 10 years. This

submission has been countered by learned counsel for the

Insurance Company who states that price rise and cost of index

inflation cannot be considered in a claim petition under Section

163-A of the MVA.

8 To counter this submission learned counsel for the claimants

has placed reliance upon a judgment of the coordinate Bench of

this Court reported in 2009 (3) T.A.C. 120 (Del.) New India

Assurance Co. Ltd. Vs. Mohd. Jabir & others where also future

prospects were taken into account and the income of the deceased

was doubled; this was also in a claim petition under Section 163-A

of the MVA. The rider which has to be kept in mind is that the

income calculated by the Tribunal should not exceed `40,000/- per

annum which is a pre-requisite for the applicability of the

provisions under Section 163-A of the MVA.

9 Both these contentions of learned counsel for the claimants

have force. The benefit of price rise index and cost of inflation has

to be given to the victim. The compensation thus assessed would

read as under:-

      Salary of the deceased              `3,300/-
      Adding future prospects (50%)       `1,650/-
                                          `4,950/-

Deducting 1/3rd personal expenses `1,650/-

`3,300/-X12X17 = `6,73,200/-

10 The amount awarded under the head of funeral expenses,

loss of estate and hospitalization & treatment expenses calls for

no interference.

11 Both the appeals are disposed of in the above terms.

INDERMEET KAUR, J.

AUGUST 12, 2011 a