Delhi High Court
Bajaj Allianz General Insurance ... vs Smt Raj Kumari & Ors on 17 September, 2012
Author: G.P. Mittal
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 17th September, 2012
+ MAC.APP. 237/2012
BAJAJ ALLIANZ GENERAL
INSURANCE CO LTD ..... Appellant
Through: Mr.Rajat Brar, Advocate
versus
SMT RAJ KUMARI & ORS ..... Respondents
Through: Mr.Robin Kumar, Advocate for
R-1 to R-3
CORAM:
HON'BLE MR. JUSTICE G.P. MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The present Appeal is directed against the judgment dated 21st December,
2011 passed by the Motor Accident Claims Tribunal (the Claims
Tribunal) whereby a compensation of Rs.22,13,892/- was awarded for the
death of Hira Lal aged about 55 years, who had been working as a Sub
Inspector in Delhi Police, who suffered fatal injuries in an accident which
occurred on 24th August, 2008, after which he was hospitalised in
Dr.Baba Saheb Ambedkar Hospital (BSA Hospital) for 13 days.
2. It is urged that the Claimants failed to prove any negligence on the part of
Respondent No.4, driver of the offending car, and that deduction towards
income tax was not made to compute the loss of dependency. Reliance is
placed on Sarla Verma & Ors. v. Delhi Transport Corporation & Anr,
(2009) 6 SCC 121.
3. Admittedly, in this case, no eye witness was examined to prove the
negligence. At the same time, it is important to note that in this case an
FIR was registered on the basis of the statement made by the deceased
Hira Lal. He informed the IO that while he was proceeding to his house
after finishing his duty on 11th August, 2008 at about 9.30 AM a car
bearing No.DL-8CJ-1136 being driven in a rash and negligent manner
came from the side of Village Pooth and collided against his two wheeler.
Hira Lal succumbed to the injury suffered in the accident and thus
statement made by him to the police became a dying-declaration.
4. The driver of the offending car did not come forward to rebut the case set
up by the Claimants on the question of negligence. In Bimla Devi and
Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC
530, the Supreme Court held that in a Petition under Section 166 of the
Act, the Claimants were merely to establish their case on the touchstone
of preponderance of probability and a holistic view is to be taken while
dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of
the report is extracted hereunder:
"15. In a situation of this nature, the Tribunal has rightly
taken a holistic view of the matter. It was necessary to be borne in
mind that strict proof of an accident caused by a particular bus in
a particular manner may not be possible to be done by the
claimants. The claimants were merely to establish their case on
the touchstone of preponderance of probability. The standard of
proof beyond reasonable doubt could not have been applied."
5. Thus, the Claims Tribunal's finding that the negligence on the part of the
driver of the offending car bearing No. DL-8CJ-1136 was established,
cannot be faulted.
6. It is well settled that income tax has to be deducted from the income of
the deceased to compute loss of dependency. It was established that at the
time of his death, the deceased was getting a salary of `24,647/- per
month, Ex. PW2/1.
7. There would be an income tax liability to the extent of `14,576/-. Thus,
loss of dependency comes to `20,62,045/- (`24,647/- x 12 - `14,576/-
(income tax) x 2/3 x 11).
8. The Claims Tribunal awarded a sum of `10,000/- towards the loss of love
and affection. Loss of love and affection can never be measured in terms
of money. Thus, uniformity has to be adopted by the Courts while
granting non-pecuniary damages. The Supreme Court in Sunil Sharma v.
Bachitar Singh (2011) 11 SCC 425 and in Baby Radhika Gupta v.
Oriental Insurance Company Limited (2009) 17 SCC 627 granted
`25,000/- (in total to all the claimants) under the head of loss of love and
affection. Thus, I would enhance the compensation under this head to `
25,000/-.
9. Thus, on adding a sum of `25,000/- towards love and affection and a sum
of `10,000/- each towards funeral expenses, towards loss to estate and
loss of consortium, the overall compensation thus comes to ` 21,17,045/-.
10. It is proved on record that immediately after accident the deceased was
removed to Dr.Baba Saheb Ambedkar Hospital (BSA). He battled for
survival for 13 days before his succumbed to the injuries. Even if the
treatment received in a government hospital is free. The Claims Tribunal
did not award any compensation towards special diet, conveyance and
attendant charges. In the case of 'Delhi Transport Corporation and Anr.
v. Kumari Lalita' 22 (1982) DLT 170 (DB), a Division Bench of this
Court held that victims/claimants have to be compensated for the
gratuitous services rendered by the family members. Relevant para of the
report is extracted hereunder:-
"(33) Counsel for the Corporation argued that since Lalita is
being looked after by her mother compensation ought to be
reduced. We do not agree. In the case of Lalita the main question
is of future care. Today she is being helped by her mother. But that
does not mean that she is not to be compensated for services
rendered to her. A legal agreement between mother and daughter
is not necessary to claim compensation. We cannot deduct what is
described as the 'domestic element' from the cost of care. A wrong
doer cannot take advantage of this 'domestic element.' If the
mother renders service to her, instead of a nurse, it is right and
fust that she should recover compensation for the value of the
services that the mother has rendered to her. Mother's services
were necessitated by the wrong doing and the injured should be
compensated for it. (Cunnigham v. Harrison (1973) 3 All E.R.
463). The services of a wife and mother are worth more than those
of a house-keeper because she is in constant attendance and does
many more things than a house-keeper. (Regan v.
Williamson (1976) 2 All E. R. 241)".
11. The Claims Tribunal awarded a total compensation of `22,13,892/-. I
would grant a sum of `1,00,000/- as a lump sum compensation towards
attendant charges, conveyance, special diet and expenditure towards
treatment. Hence, on adding the same the total sum comes to 22,17,045/-
which is less than the compensation awarded. In the circumstances, the
impugned award does not call for any interference.
12. The Appeal is devoid of merit; it is accordingly dismissed.
13. The statutory amount of `25,000/- be refunded to the Appellant Insurance
Company.
14. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
SEPTEMBER 17, 2012
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