Delhi High Court
New India Assurance Co. Ltd. vs Nasima Khatoon & Ors on 12 March, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 21st February, 2012
Pronounced on: 12th March, 2012
+ MAC. APP. No.591/2010
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. K.L. Nandwani, Advocate
Versus
NASIMA KHATOON & ORS .... Respondents
Through: Mr. Bharat Sharma, Advocate
for the Respondents No.1 to 3
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellant New India Assurance Co. Ltd. seeks reduction of
compensation of `6,26,000/- awarded for the death of Sajlul
Rehman who died in an accident which took place on
05.01.2008.
2. The Claims tribunal by the impugned order took the deceased's
income to be `4,000/-, deducted 1/5th towards his personal and
living expenses, adopted the multiplier of 15 suitable to the
deceased's age, added a sum of `10,000/- each towards funeral
expenses and loss of consortium, `30,000/- towards loss of
love and affection to compute an overall compensation of
`6,26,000/-.
3. The following conditions are raised on behalf of the Appellant:
i) There should have been deduction of 1/4th towards
the personal and living expenses instead of 1/5th as
made by the Claims Tribunal as the number of
dependents were four.
ii) The deceased was a gratuitous passenger and thus
the Insurance Company had no liability to pay, or in
the alternative, if the deceased is presumed to be an
employee of Gateway Rail Freight Ltd., the Sixth
Respondent and owner of the offending truck, the
compensation ought to have been awarded in
favour of the Respondents No.1 to 4 on the scale
under the Workmen's Compensation Act and not
under the Motor Vehicles Act.
4. The Supreme Court in Sarla Verma & Ors. v. Delhi Transport
Corporation & Anr., (2009) 6 SCC 121, suggested the
deduction of 1/4th of the deceased's income towards his
personal and living expenses where the number of dependents
is 4 to 6, 1/5th deduction was provided where the number of
dependents was more than 6. Since in this case, number of
dependents were four, the Claims Tribunal erred in deducting
1/5th towards his personal and living expenses. I agree with
this contention raised on behalf of the Appellant.
5. As far as plea of gratuitous passenger is concerned, it would be
important to have a look at the pleadings of the parties. In para
5 of the Claims Petition, it was stated that the deceased was an
employee of Gateway Rail Freight Ltd., Inland Container, Shri
Maruti Nagar, Gurgaon. It is mentioned that he was working
as a driver. In para 24 of the Petition, it was stated that on
05.01.2008, the deceased was travelling in the offending
vehicle after finishing his duty with the Sixth Respondent (i.e.
the owner of the vehicle). The offending vehicle No. HR-55G-
1862 was being driven at a high speed in rash and negligent
manner by the Fifth Respondent. On account of a sudden jerk,
the deceased fell down from the window of the offending
vehicle. Para 1 to 7 of the Claim Petition were not denied by
the Fifth Respondent (Respondent No.1 before the Claims
Tribunal) who was the driver of the offending vehicle. The
manner of the accident was also not traversed, although the
Fifth Respondent took the plea that the accident was caused on
account of the deceased's own negligence.
6. The Appellant Insurance Company also did not traverse para 1
to 9 of the Claim Petition. In para 24, it took the plea that since
the deceased was travelling in a goods carrying commercial
vehicle, only the insured was liable to pay the compensation to
the Petitioner. It is important to note that the averments that
the deceased was working as a driver on this very truck
(Trolly) and was an employee of the Sixth Respondent was not
denied. Thus, the plea of gratuitous passenger could not have
been taken by the Appellant.
7. The alternative plea of the Appellant that the Respondents No.1
to 4 were entitled to be paid the compensation payable under
the Workmen's Compensation Act has been taken for the first
time only in the grounds of Appeal. In "an act only" policy,
the insurer is liable to pay the compensation only under the
Workmen's Compensation Act even if the victim or his legal
representatives approach the Claims Tribunal under section
166 of the Motor Vehicles Act. In this case, neither any such
plea was taken in the written statement nor the insurance
policy, though available on the Trial Court record, was proved
by the Appellant. In the circumstances, the Appellant now
cannot be permitted to contend that it was only an "act only"
policy and its liability was limited payable only under the
Workmen's Compensation Act.
8. The Claims Tribunal did not grant any compensation to
Respondents No.1 to 4 for the loss to estate although it granted
compensation of `30,000/- towards loss of love and affection.
Since, normally a compensation of `25,000/- is granted
towards love and affection (Sunil Sharma v. Bachitar Singh
(2011) 11 SCC 425 and Baby Radhika Gupta v. Oriental
Insurance Company Limited (2009) 17 SCC 627), I would treat
the compensation of `25,000/- towards loss of love and
affection and `5,000/- towards loss to estate.
9. The loss of dependency is reassessed on deduction of 1/4th
towards personal and living expenses which comes to
`5,40,000/-(`4,000 X 12 X 3/4 X 15).
10. The overall compensation is re-computed as under:
S. Head of Compensation Granted by Granted by
the Claims this Court
No.
Tribunal
1. Loss of Dependency `5,76,000/- `5,40,000/-
2. Loss of Love & Affection `30,000/- `25,000/-
3. Funeral Expenses `10,000/- `10,000/-
4. Loss of Consortium `10,000/- `10,000/-
5. Loss to Estate - `5,000/-
Total `6,26,000/- `5,90,000/-R
11. In the circumstances, total compensation payable comes to
`5,90,000/-. The Claims Tribunal awarded a compensation of
`6,26,000/- which, in the circumstances of the case, cannot be
said to be excessive and exorbitant, particularly when the
Claims Tribunal took the salary of the deceased as a driver of
the truck only `4,000/-.
12. I would not like to interfere with the award of compensation of
`6,26,000/-. The Appeal is accordingly dismissed.
13. The compensation shall be disbursed in favour of the
Respondents Claimants in the manner as directed by the
Claims Tribunal.
14. The statutory amount of `25,000/- shall be released to the
Appellant.
15. No costs.
(G.P. MITTAL)
JUDGE
MARCH 12, 2012
pst
