Moorti Sharan And Ors. vs Balwan Singh And Ors.
2011 Latest Caselaw 4084 Del

                                      UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    FAO 195/1992


MOORTI SHARAN AND ORS.                           ..... Appellants
                Through:              Mr. Ashok Popli, Advocate

                  versus

BALWAN SINGH AND ORS                              ..... Respondents
                 Through:             Mr. Pankaj Seth, Advocate for
                                      the respondent No.3.


%                          Date of Decision : August 23, 2011

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
   to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?

                           J U D G M E N T (ORAL)

: REVA KHETRAPAL, J.

1. This appeal is directed against the judgment and award dated

10.04.1992 passed by the Motor Accidents Claims Tribunal in case

No.5/1984 whereby the appellants have sought enhancement of the

award amount with the further prayer that the respondent No.3-

Insurance Company be directed to pay the entire amount of

compensation and the finding of the learned Claims Tribunal limiting

the liability of the Insurance Company to the extent of ` 1,50,000/-

only be set aside.

2. At the outset, it is relevant to mention that despite all efforts

made by this Court to obtain the record of the learned Claims

Tribunal, the same could not be made available and presumably, has

been destroyed. This Court is, therefore, left with no option except to

hear the contentions of the learned counsel for the parties and to

proceed on the basis of the judgment of the Motor Accidents Claims

Tribunal.

3. The essential facts are not in dispute. One Shri M.M. Sharan,

an Advocate by profession, died on account of the rash and negligent

driving of truck bearing No.DEG-3474, driven by the respondent

No.1 and insured with the respondent No.3-Insurance Company in the

name of the respondent No.4. A Claim Petition under Section 110-A

of the Motor Vehicles Act, 1939 was filed by the ten legal

representatives of the deceased for grant of compensation. During the

pendency of the petition, however, one of the sons of the deceased

and the mother of the deceased died and their names were deleted

from the array of parties. The Claim Petition was contested only by

the respondent No.3-Insurance Company. The respondents No.1, 2

and 4 did not choose to contest the petition and were accordingly

proceeded ex parte.

4. The learned Claims Tribunal, after conducting an enquiry as

envisaged under the Act, held that Shri M.M. Sharan had died as a

result of the rash and negligent driving of the offending truck on the

part of the respondent No.1-driver. As regards, the income of the

deceased, the learned Claims Tribunal held that a perusal of the

assessment order for the assessment year 1982-83 (Exhibit PW6/1)

showed that for the said assessment year the income of the deceased

was ` 14,430/-, while his total income for the assessment year 1983-

84 (Ex.PW6/2) was ` 15,350/- and, thus, as per the last assessment

order, the total income of the deceased was about ` 1,300/- per month

immediately before his death. It, then, proceeded to assess the

dependency of the claimants at ` 1,000/- per month and applying the

multiplier of 15, assessed the total amount of compensation payable

to the claimants to be in the sum of ` 1,80,000/- (that is ` 1,000/- x

12 x 15). The claimants were accordingly held entitled to an award in

the sum of ` 1,80,000/- with interest thereon at the rate of 12% per

annum from the date of the filing of the petition till its realisation.

Further, the learned Claims Tribunal held that the liability of the

Insurance Company was limited to the extent of ` 1,50,000/- as

evidenced by the insurance policy Ex.RW1/1 and held the Insurance

Company liable to pay only the said amount to the claimants with

proportionate interest. It further held that the remaining amount was

liable to be paid jointly and severally by the respondents No.1 and 4.

5. Aggrieved therefrom, the appellants/claimants have preferred

the present appeal seeking enhancement of the award amount and also

setting aside of the finding rendered by the learned Tribunal that the

liability of the Insurance Company was limited to ` 1,50,000/- only.

6. Having heard Mr. Ashok Popli, the learned counsel for the

appellants and Mr. Pankaj Seth, Advocate on behalf of the respondent

No.3-Insurance Company, I find no reason to interfere with the

finding of the learned Tribunal as regards the assessment of the

income of the deceased, which comes to ` 1,279/- per month,

increased by the Tribunal to ` 1,300/- per month, in view of the fact

that the said assessment has been made on the basis of the income-tax

assessment orders relied upon by the claimants themselves and in

view of the further fact that the deceased was self-employed and of 51

years age. It would be apposite to note that in the case of Smt. Sarla

Verma and Ors. vs. Delhi Transport Corporation and Anr. (2009) 6

SCC 121, with a view to ensure uniformity in the computation of

compensation payable to the legal representatives of victims of motor

accidents, the Supreme Court has laid down guidelines to be followed

by all Tribunals and High Courts, which provide, inter alia, as under:-

"In Susamma Thomas, this Court increased the income by nearly 100%, in Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words „actual salary‟ should

be read as „actual salary less tax‟]. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."

7. In view of the aforesaid, the findings of the learned Tribunal

with regard to the assessment of the income of the deceased are

affirmed. As regards deduction towards the personal expenses of the

deceased, keeping in view the fact that the deceased had ten

dependant family members, a deduction of not more than one-fifth

(1/5th) from the income of the deceased as assessed hereinabove

(instead of ` 300/- deducted by the Tribunal) towards the personal

expenses of the deceased would, in my opinion, be justified. The loss

of dependency of the appellants thus comes to ` 1,040/- per month or

say ` 12,480/- per annum. It is not in dispute that the deceased was

51 years of age on the date of his accidental death Thus, the

appropriate multiplier to be applied to the aforesaid multiplicand

would be the multiplier of 11 as approved by the Supreme Court in

the case of Smt. Sarla Verma (supra), and not the multiplier of 15,

which has been applied by the Tribunal. In this manner, the loss of

dependency of the appellants works out to ` 1,37,280/-, that is, `

12,480/- x 11. It is clear that even if non-pecuniary damages under

various heads including loss of consortium, loss of love and affection

and loss of estate as well as funeral expenses are added to the

aforesaid pecuniary damages, the award amount will not exceed `

1,80,000/-. Thus, in my view, no ground for enhancement of the

quantum of compensation of ` 1,80,000/- awarded by the learned

Tribunal to the appellants is made out.

8. The only other aspect of the matter which remains to be

considered is the question whether the Insurance Company is liable to

pay the entire amount of compensation to the appellants or whether its

liability is limited to ` 1,50,000/- only. On the basis of the evidence

of RW1 Shri B.L. Barwani, Legal Assistant of the Insurance

Company, who proved on record the insurance policy as Ex.RW1/1,

the learned Tribunal held that the liability of the Insurance Company

was limited to the extent of ` 1,50,000/- as only ` 100/- had been

charged for covering liability to the extent of ` 1,50,000/- qua third

parties. I see no reason to disagree with the aforesaid finding of the

learned Tribunal, more so in the absence of the records of the learned

Tribunal and copy of the insurance policy Ex.RW1/1. It would have

been a different matter if the respondent No.4 had contested the

Claim Petition and taken the plea that additional premium was paid

by him for insuring unlimited third party liability. Since no such plea

was taken by the insured-respondent No.4, I have no hesitation in

holding that the liability of the Insurance Company is limited to the

extent of ` 1,50,000/- only.

9. Resultantly, the appeal fails and is dismissed. There will be no

order as to costs.

REVA KHETRAPAL (JUDGE) August 23, 2011 km