National Insurance Co Ltd vs Dr Shahabuddin Ahmed & Ors
2014 Latest Caselaw 5591 Del

$~A-15 & 19
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision:10/11/2014
+     MAC.APP. 1126/2011
      NATIONAL INSURANCE CO LTD                 ..... Appellant
                      Through Mr.Pankaj Seth, Advocate.
               versus
      DR SHAHABUDDIN AHMED & ORS                ..... Respondents
                      Through Mr.O.P.Mannie, Advocate for R-1 & 2.

+     MAC.APP. 79/2012
      SHAHABUDDIN & ANR                         ..... Appellants
                      Through Mr.O.P.Mannie, Advocate.
               versus
      SABAHAT HUSSAIN ZAIDI & ORS               ..... Respondents
                      Through Mr.Pankaj Seth, Advocate.


      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

MAC.APP. 1126/2011 and MAC.APP. 79/2012

1. These are two appeals filed by the Insurance Company and the claimants. MAC Appeal 1126/2011 is filed by the Insurance Company seeking to impugn the Award dated 07.09.2011. MAC Appeal No. 79/2012 is filed by the claimants seeking enhancement of compensation.

2. The brief facts giving rise to the claim petition are that the deceased was a young bachelor named Firaz Ahmed aged 23 years who was studying MBBS final year at Aligarh Muslim University. On 10.02.2004 the deceased was travelling in a Maruti while coming from Aligarh towards Delhi. At Mihir Bhoj

Degree College, the car met with an accident with a truck coming from behind which hit the car with great force. The said truck was said to be driven at a very high speed in a negligent manner. The deceased died due to the injuries sustained in the accident.

3. Based on the evidence on record, the Tribunal held that the fatal accident took place on account of the fault and negligence of the driver of the offending vehicle. Regarding compensation the Tribunal awarded a total compensation of Rs.7,30,000/-. Loss of dependency was calculated at Rs.7,20,000/-. Rs.5,000/- was given for loss of estate and Rs.5,000/- was awarded towards funeral expenses.

4. Learned counsel appearing for the insurance company strenuously urges that the compensation awarded is on the higher side. He submits that it is the own contention of the claimants/respondents No.1 and 2 in MAC APP. 1126/2011 in the claim petition that their son was carrying on tuitions and earning Rs.39,000/- per annum. In the evidence by way of affidavit PW- 1/respondent No.1 in MAC APP. 1126/2011 also reiterated that his son was earning Rs.39,000/- per annum. It is urged that ignoring this, the Tribunal has assessed the income at Rs.10,000/- per month and accordingly computed loss of dependency. It is secondly urged that the driver and the owner of the offending vehicle failed to place on record the driving license of the driver and hence, it is urged that the Insurance Company is entitled to recovery rights from the said persons.

5. The contentions of the learned counsel for the Insurance Company are interlinked with the contentions of the claimants in MAC. APP. 79/2012. Learned counsel appearing for the claimants in MAC. APP. 79/2012 submits

that assessing the notional income of the deceased at Rs.10,000/- per month is highly improper and on the lower side. He relies upon the judgment in the case of Ashvinbhai Jayantilal Modi vs. Ramkaran Ramchandra Sharma & Anr., 2014 (11) Scale 427 to contend that in similar circumstances where the deceased was a medical student, the Supreme Court had fixed the notional income at Rs.25,000/- per month and accordingly assessed the loss of dependency. He submits that facts of that case and the present case are exact and identical and computation for assessment of loss of dependency has to be on the said basis.

6. A perusal of the award shows that the Tribunal noted that the deceased would have completed his MBBS in 2005 and his income in 2005 could be taken to be Rs.10,000/- per month. 50% was deducted for personal expenses and a multiplier of 13 was adopted. Hence, loss of dependency was calculated at Rs.7,20,000/-.

7. Ashvinbhai Jayantilal Modi vs. Ramkaran Ramchandra Sharma & Anr. (supra) was a case in which the deceased was 19 years old and pursuing his medical degree with good marks at the time of the accident. The accident took place on 12.7.2002. Based on this background, the Supreme Court held that future income of the deceased should be assessed at Rs.25,000/- per month i.e. Rs.3,00,000/- per annum. 1/3rd was deducted towards personal expenses and applying a multiplier of 13, loss of dependency was calculated at Rs.26 lacs.

8. Hence, in the facts and circumstances of the present case, in view of the submission of the learned counsel for the claimants in MAC. 79/2012, the said judgment of the Supreme Court would apply squarely to the facts of the present case. The deceased in the present case was a student of MBBS final year at

Aligarh Muslim University aged 23 years.

9. In my opinion there is no merit in the contention of the learned counsel for the appellant Insurance Company that the income at the time of the accident of the deceased was Rs.39,000/- per annum as per the claim petition and evidence of respondent No.1 in MAC APP. 1126/2011. The Supreme Court in the case of Nagappa vs. Gurudayal Singh & Ors., 2003 ACJ 12 has held that there is no restriction that the compensation could be awarded only up to the award claimed. The Tribunal is bound to award just and reasonable compensation on the basis of evidence on record.

10. In the light of the above facts and circumstances of this case and keeping in view that it is squarely covered by the judgment of the Supreme Court in the case of Ashvinbhai Jayantilal Modi vs. Ramkaran Ramchandra Sharma & Anr. (supra), I take notional income of the deceased at Rs.3 lacs per annum. Deducting 1/3rd from the annual income towards personal expenses and taking the multiplier of 13, the compensation for loss of dependency would come to Rs.26,13,000/- and the total compensation would now come to Rs.26,23,000/-.

11. This compensation in the facts and circumstances of the present case is just, fair and reasonable.

12. Coming to the next contention regarding the recovery rights, the learned counsel for the Insurance Company has relied upon the statement of R4W1, Sh. K.G.Malhotra, Assistant Manager National Insurance Company Limited who has pointed out that the notice was sent by their counsel to produce the Insurance Policy, permit and driving license. R4W1 has stated that notice under Order XII Rule 8 CPC was sent to the owner which was exhibited as R4W1/E. Postal receipts are marked as Ex.R4W1/F and .R4W1/G. The

notice was duly served and AD card showing service on the insured was exhibited as R4W1/H. Despite service of notice, the driver or the owner has not produced the driving license.

13. A perusal of the record shows that the owner and driver were proceeded ex parte before the Tribunal. They have also not appeared before this court. In the light of the above facts and circumstances, there is a clear breach of the terms and conditions of the Insurance Policy. The Insurance Company shall be entitled to recovery rights against the owner and the driver of the offending vehicle, namely, respondents No.4 and 5 in MAC APP. 1126/2011. Both the appeals stand disposed of.

14. Statutory amount, if any, deposited by the appellant Insurance Company at the time of fining of the appeal i.e. MAC.APP. 1126/2011 be refunded.

15. Additional compensation amount with interest @ 7.5% per annum from the date of the filing of the claim petition till deposit before the Registrar General of this Court within six weeks from today. On receipt of the same, 50% be kept in a fixed deposit for a period of six years with UCO Bank, Delhi High Court, on which the claimants shall be entitled to quarterly interest. The balance shall be released to the claimants/respondents No.1 and 2 in MAC. APP.1126/2011 proportionately in the same proportion as directed by the Tribunal.

JAYANT NATH, J NOVEMBER 10, 2014 rb