Delhi High Court
National Insurance Co. Ltd. vs Aasma Praveen & Ors. on 7 May, 2012
Author: G.P. Mittal
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:7th May, 2012
+ MAC. APP. No.323/2011
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr.D.K. Sharma, Advocate
Versus
AASMA PRAVEEN & ORS. ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for reduction of compensation of `5,20,000/-
awarded in a petition under Section 163-A for the death of
Hidayat Khan, who expired in an accident arising out of the use
of the motor vehicle i.e. maruti van bearing registration No.DL-
5CC 5540.
2. There is twin challenge to the compensation awarded. It is
urged that the deceased was working as a driver of maruti van
with the owner. The salary of a skilled worker on the date of
the accident was `2,948/-. Thus, the deceased's income ought
to have been taken as `3,000/- per month i.e. `36,000/- per
annum instead of `40,000/- per annum taken by the Claims
Tribunal. It is contended that the award of non-pecuniary
damages to the tune of `40,000/- is not in consonance with the
Second Schedule which prescribes a sum of `9,500/- in all
towards non-pecuniary damages in case of the death of a
married person.
3. There is no dispute about the proposition of law. It is well
settled that in a Claim Petition under Section 163-A of the Act,
the compensation has to be awarded as per the structured
formula given in the Second Schedule appended to the Motor
Vehicles Act. This Court in New India Assurance Co. Ltd.
v. Pitamber & Ors., MAC APP. No.304/2009 decided on
23.01.2012 noticed the divergence of opinion in the judgment of
this Court in Oriental Insurance Company Limited v. Smt.
Pataso & Ors., MAC APP.962/2005 decided on 01.09.2008;
Oriental Insurance Company Limited v. Om Prakash & Ors., 1
(2009) ACC 148; Jagdish & Anr. v. Madhav Raj Mishra and
Anr. MAC APP.190/2011 decided on 19.04.2011; and Oriental
Insurance Company Limited v. Anita Devi & Ors., 2011 (5) AD
(Delhi) 138, and relying on the Supreme Court judgments in
Oriental Insurance Company v. Hansrajbhai v. Kodala, (2001)
5 SCC 175; Deepal Girishbhai Soni v. United India Insurance
Company Limited, (2004) 5 SCC 385; and Oriental Insurance
Company Limited v. Meena Variyal (2007) 5 SCC 428 held that
the judgment of this Court in Anita Devi & Ors. (supra) is in
consistence with the law laid down in Kodala and Deepal
Girishbhai Soni(supra) and that the compensation under Section
163-A can be awarded only on the basis of the structured
formula.
4. Although, the minimum wages of a skilled worker on the date
of the accident was about `3,000/-, since it was established
before the Claims Tribunal that the deceased was working as a
driver with the owner of maruti van, therefore his income could
have been assumed to be `40,000/- per annum or about `3,300/-
per month. There is no fault in awarding a compensation of
`4,80,000/- towards the loss of dependency. The Second
Schedule provides for a compensation of `5,000/- towards loss
of consortium, `2,500/- towards loss to estate and `2,000/-
towards funeral expenses. Thus, the Claimants were entitled to
a sum of `9,500/- only towards the non-pecuniary damages.
5. The compensation, therefore, stands reduced from `5,20,000/-
to `4,89,500/-.
6. The Appellant Insurance Company shall be entitled to refund of
excess amount of `30,500/- along with the proportionate interest
and the interest earned during the pendency of the Appeal.
7. The compensation of `4,89,500/- along with interest @ 8% per
annum as awarded by the Claims Tribunal and the interest
accrued during the pendency of the Appeal, if any, on this
amount shall be disbursed to the Respondents No.1 to 4 in terms
of the order passed by the Claims Tribunal.
8. The Appeal is allowed in above terms.
9. The statutory amount of `25,000/- shall be refunded to the
Appellant Insurance Company.
(G.P. MITTAL)
JUDGE
MAY 07, 2012
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