Delhi High Court
Oriental Insurance Co. Ltd. vs Sandeep Tomar & Ors on 25 May, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 17th May, 2012
Pronounced on: 25th May, 2012
+ MAC APP. 631/2009
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Santosh Paul with Ms.
Mohita Bagai, Advocates
Versus
SANDEEP TOMAR & ORS ..... Respondents
Through: Mr. Anil Gera with Mr. Rakesh
Chaudhary, Advocates for the
Respondents No.1 & 2.
WITH
+ MAC.APP. 27/2010
SANDEEP TOMAR & ANR ..... Appellant
Through Mr. Anil Gera with Mr. Rakesh
Chaudhary, Advocates
versus
ORIENTAL INSURANCE CO LTD & ORS ..... Respondent
Through Mr. Santosh Paul with
Ms. Mohita Bagai, Advocates
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. These two Cross-Appeals arise out of a judgment dated
30.09.2009 passed by the Claims Tribunal whereby while
deciding the Claim Petition Suit No.656/2008, a compensation
of `2,17,33,666/- was awarded for the death of Satyabir Singh
Tomar in an accident which occurred on 30.12.2003.
2. The Appellant Oriental Insurance Company Ltd. impugns the
judgment on the ground, inter alia, that the Respondents (the
Claimants) did not adduce any evidence to prove the damages
actually suffered by them and the compensation awarded is
exorbitant and excessive.
3. On the other hand, in the Cross-Appeal being MAC APP.
No.27/2010, the Claimants' grievance is that the deceased
Satyabir Singh Tomar had a flourishing business of building
contractor; thus he had bright future prospects which was not
translated in terms of money by the Claims Tribunal. The two
sons of the deceased (their mother, grand-mother and sister
having died in this very accident apart from their father) were
very young, one aged 18 years and the other 21 years at the time
of the accident; the Claims Tribunal erred in adopting a
multiplier of '5' which was too low and in violation of the
settled law.
4. It is not in dispute that the deceased Satyabir Singh Tomar was
running a proprietorship firm in the name and style of M/s
Tomar Construction Company. The said firm was dissolved on
the death of the deceased. The Claimants formed a partnership
concern in the same name and carried on the business of
building contractor from the same premises. The Claimants'
case is that they did not have the requisite number of years of
experience as contractor and, therefore, were not qualified to
accept building contracts. This is disputed by the Appellant
Insurance Company whose plea is that the Claimants have
withheld material evidence as to their income from the business
in the name and style of M/s Tomar Construction Company. It
is urged that a Claims Tribunal awards damages for the loss
suffered and if there is any gain on account of unfortunate
death, it has to be deducted from the damages suffered.
5. In New India Assurance Company Ltd. v. Yogesh Devi & Ors.,
(2012) 3 SCC 613, the Supreme Court relied on the judgment in
State of Haryana v. Jasbir Kaur, (2003) 7 SCC 484 where it
was observed as under:
"8. This Court in Jasbir Kaur case held that the
Tribunal is required to make a just and reasonable
award determining the compensation to be paid to the
dependants of the victim of a fatal motor vehicle
accident. Explaining the concept of just and
reasonable award in the context of a motor vehicle
accident claim, this Court held as follows:
"7. It has to be kept in view that the tribunal
constituted under the Act as provided in Section 168 is
required to make an award determining the amount of
compensation which is to be in the real sense
„damages‟ which in turn appears to it to be „just and
reasonable‟. It has to be borne in mind that
compensation for loss of limbs or life can hardly be
weighed in golden scales. But at the same time it has
to be borne in mind that the compensation is not
expected to be a windfall for the victim. Statutory
provisions clearly indicate that the compensation must
be „just‟ and it cannot be a bonanza; not a source of
profit; but the same should not be a pittance. The
courts and tribunals have a duty to weigh the various
factors and quantify the amount of compensation,
which should be just. What would be „just‟
compensation is a vexed question. There can be no
golden rule applicable to all cases for measuring the
value of human life or a limb. Measure of damages
cannot be arrived at by precise mathematical
calculations. It would depend upon the particular
facts and circumstances, and attending peculiar or
special features, if any. Every method or mode
adopted for assessing compensation has to be
considered in the background of „just‟ compensation
which is the pivotal consideration. Though by use of
the expression „which appears to it to be just‟ a wide
discretion is vested in the Tribunal, the determination
has to be rational, to be done by a judicious approach
and not the outcome of whims, wild guesses and
arbitrariness. The expression „just‟ denotes
equitability, fairness and reasonableness, and non-
arbitrary. If it is not so it cannot be just.(Helen C.
Rebello v. Maharashtra SRTC)".
6. In United India Insurance Co. Ltd. v. Patricia Jean Mahajan,
(2002) 6 SCC 281, it was held that the benefit received which
has relation only to the accidental death is liable to be deducted
from the damages payable to him.
7. Perusal of the Trial Court record shows that the Claims Tribunal
directed the Claimants to produce the Partnership Deed entered
into between the Claimants to carry out the business. Section
168 of the Act enjoins every Claims Tribunal to hold an inquiry
to award a compensation which appears to it to be just.
Therefore, even if the Claimants had failed to produce their
Income Tax Returns for the period after the accident, the same
could have been elicited by the Claims Tribunal to award just
compensation. Similarly, the disability of requisite experience
was also required to be gone into after eliciting evidence in this
regard from the parties.
8. It is true that while awarding compensation, the Court can make
some guess work, but it cannot be merely on wild guesses,
speculation and arbitrariness. In the circumstances, it would be
difficult to sustain the impugned order with regard to the grant
of compensation for the death of the deceased Satyabir Singh
Tomar.
9. The impugned order is set aside and the case is remanded back
to the Claims Tribunal with directions:
(i) to elicit evidence with regard to the income of the
partnership firm of M/s Tomar Construction
Company constituted after the death of the deceased;
and
(ii) to elicit evidence with regard to the disability of the
partnership firm in not having requisite experience
in obtaining the contracts.
10. It is made clear that the Appellant Insurance Company shall
have the right of rebuttal. The Claims Tribunal after recording
the evidence shall be entitled to take an independent decision
with regard to the quantum of compensation without being
bound by the view taken in the impugned judgment.
11. Since the accident relates to the year 2003, it shall be
appreciated if the Petition is decided expeditiously.
12. The Appeals are disposed of in above terms.
13. The parties are directed to appear before the Claims Tribunal on
16th July, 2012.
14. TCR be returned.
(G.P. MITTAL)
JUDGE
MAY 25, 2012
pst
