Delhi High Court
Oriental Insurance Co. Ltd. vs Baby Bhawna & Ors. on 13 August, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 13th August, 2012
+ MAC. APP. 147/2012
ORIENTAL INSURANCE CO. LTD. ...... Appellant
Through: Mr. Tarkeshwar Nath, Adv. with
Mr. Saurabh Kumar Tuteja, Adv.
versus
BABY BHAWNA & ORS. ...... Respondents
Through Mr. S.K.Pandey, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for reduction of compensation of `5,30,400/- awarded by
the Motor Accident Claims Tribunal (the Claims Tribunal) in favour of
the First Respondent for having suffered injuries in a motor vehicle
accident which occurred on 3.08.2008.
2. On 03.08.2008 at about 1:00 P.M., the First Respondent was riding
pillion on a motor cycle No.DL-5SZ-6505 driven by her uncle
Chandervir Singh. When they reached in front of Transport Authority,
Loni, Meet Nagar, Delhi an RTV bus No.DL-1VA-1876 driven by the
Second Respondent (Rambeer) in a rash and negligent manner dashed
against the motor cycle while overtaking the same. Appellant suffered
serious injuries. She was issued a Disability Certificate Ex.PW-1/4
declaring her to have suffered permanent disability in respect of left
upper limb to the extent of 69%.
3. The grounds of challenge raised during the hearing of Appeal are that the
Claims Tribunal erred in applying the multiplier of '18' whereas the
multiplier has not been provided in Sarla Verma (Smt.) & Ors. v. Delhi
Transport Corporation & Anr., (2009) 6 SCC 121 in case of a victim who
is less than 15 years; the Claims Tribunal erred in granting increase of
50% though the First Respondent was only a student; the compensation
awarded towards non-pecuniary damages is on the higher side.
4. The compensation awarded is tabulated hereunder:-
Sl.No. Compensation under various heads Awarded by the
Claims Tribunal
1. Conveyance Charges ` 10,000/-
2. Attendant Charges ` 18,000/-
3. Special Diet ` 10,000/-
4. Loss of Future Earning Capacity ` 2,43,000/-
5. Loss of Studies ` 25,000/-
6. Pain and Suffering ` 1,00,000/-
7. Loss of Amenities/Marriage Prospects ` 1,00,000/-
8. Loss of Expectation of Life ` 20,000/-
9. Medical Bills ` 4,356/-
` 5,30,356/-
Total
Rounded off
`5,30,400/-
5. It is well settled that the potential income of a victim has to be taken into
consideration to compute the loss of dependency. (Haji Zainullah Khan
(Dead) by Lrs. v. Nagar Mahapalika, Allahabad, 1994 (5) SCC 667 and
Ganga Devi & Ors. v. New India Assurance Co. Ltd. & Ors., MAC APP.
359/2008, decided by this Court on 23.11.2009). In the instant case, the
First Respondent was a student of 11th standard. The least, what was
expected of the Claims Tribunal to have awarded compensation on the
basis of minimum wages of a Matriculate, even if, her potential income
was not to be taken into consideration.
6. In the absence of any evidence with regard to the future prospects, the
First Respondent was entitled to an increase of 30% towards the inflation
on the basis of judgment of the Supreme Court in Santosh Devi v.
National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559, relied on
and discussed by this Court in Rakhi v. Satish Kumar & Ors. (MAC. APP.
390/2011) decided on 16.07.2012.
7. The First Respondent was a student of 11th standard. It would be difficult
to assess the exact loss of future earning capacity. On rough estimate,
even if loss of future earning capacity is taken as 40%, the same would
come to `4,63,993/- (4131/- + 30% x 12 x 18 x 40% ) as against an
award of `2,43,000/- under this head made by the Claims Tribunal.
8. It has to be borne in mind that it was not a case of death. The First
Respondent being a young girl was to live the whole life. The adoption
of multiplier of '18' in the circumstances was the most suitable multiplier
in the case.
9. The Claims Tribunal awarded a sum of `1,00,000/- towards pain and
suffering and `1,00,000/- towards loss of amenities and loss of marriage
prospects. This accident took place in the year 2008. In case of
Govind Yadav v. New India Insurance Co. Ltd. (2011) 10 SCC 683, relied
on by the Claims Tribunal in case of amputation of one leg a
compensation of `1.5 lacs each was awarded towards pain and suffering
and loss of amenities in life and loss of marriage prospects. Thus, the
Claims Tribunal was very conservative in awarding a compensation of
`1,00,000/- each towards pain and suffering and loss of amenities and
loss of marriage prospects in an accident which occurred four years after
the one in Govind Yadav.
10. The Appeal is frivolous; the same is dismissed with costs of `25,000/-
and without prejudice to the rights of the First Respondent to approach
this Court for enhancement of compensation.
11. The costs shall be paid to the Delhi High Court Legal Services
Committee within six weeks, failing which the statutory deposit of
`25,000/- shall be paid to the Delhi High Court Legal Services
Committee.
12. In pursuance of the Claims Tribunal Agreed Procedure laid down by a
learned Single Judge of this Court an Insurance Company is expected to
make a legal offer of just and fair compensation. But it is very intriguing
to note that as against this, the Appellant Oriental Insurance Company
Ltd. which has a full-fledged legal department prefers an Appeal even
when the compensation awarded is very conservative or meager. This is
not an isolated case but number of instances have came to the notice of
this Court where frivolous Appeals have been filed against quantum of
compensation. The Appellant may have to make its officers and
particularly the law department to be more responsible to avoid
harassment to the victim of a motor vehicle accident.
13. A copy of the judgment be sent of the General Manager, Oriental
Insurance Company Limited for information and to make an assessment
as to the kind of Appeals which are filed by the Oriental Insurance
Company Limited.
14. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
AUGUST 13, 2012
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