Delhi High Court
The New India Assurance Co Ltd vs Amarjeet Salhotra & Ors on 10 November, 2014
$~A-28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: November 10, 2014
+ MAC.APP. 490/2013
THE NEW INDIA ASSURANCE CO LTD ..... Appellant
Through Mr.R.K.Tripathi, Advocate.
versus
AMARJEET SALHOTRA & ORS ..... Respondents
Through Mr.M.C.Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)
CM Nos.17187/2013 (for restoration)
This is an application for restoration of the appeal which was dismissed
on 22.10.2013.
For the reasons stated in the application, the same is allowed.
The appeal is restored to its original position.
CM No. 16705/2014 (delay)
This is an application for condonation of delay in re-filing the
application.
For the reasons stated in the application, the same is allowed.
CM No. 16704/2014
This is an application under Order 22 Rule 4 CPC for impleading legal
heirs of deceased respondent No.2. It is pointed out that respondent No. 2 has
expired on 27.08.2013. It is urged in the application that apart from respondent
No.1, respondent No.2 is survived by a son, namely Sh.Mohit Salhotra, who is
sought to be impleaded as respondent No.5.
For the reasons stated in the application, the same is allowed and the
legal heir of respondent No.2 i.e. the son is impleaded as a party to the present
appeal. The other legal heir of respondent No.2, respondent No.1 is already on
record.
MAC.APP. 490/2013
1. Counsel for respondent No.1 also appears for respondent No.5.
2. The present appeal is filed by the appellant/insurance company seeking
to impugn the award dated 26.03.2013. The claim petition was filed by
Respondent no.1 and 2 under Section 166 and 140 of the M.V.Act, 1998.
3. The brief facts leading to the filing of the claim petition are that on
24.07.2008, the deceased Sh.Ankit Salhotra aged 22 years, was coming out of
his uncle's house at East Kidwai Nagar with his uncle and his cousin Mohit and
going towards the bus stand of South Extension on foot. While they were
waiting for the bus, a blue line bus being driven rashly and negligently by
Respondent no.3 came towards the bus stand and hit the deceased. He fell
down on the road and sustained head injuries. He was taken to Trauma Centre,
AIIMS where he was declared brought dead.
4. The Tribunal based on the evidence of the parties awarded a total
compensation of Rs. 26,81,500/- as follows:
Loss of Dependency Rs.26,36,500/-
Loss of Love & Affection Rs.25,000/-
Funeral Expenses Rs.10,000/-
Loss of estate Rs.10,000/-
Total Rs.26,81,500/-
5. The Tribunal had after relying upon the Salary Certificate of the
deceased assessed the income of the deceased at Rs.26,000/- per month. The
Tribunal awarded 30% enhancement in the said income on account of
inflation/future prospects. Further, 1/2 was deducted towards personal
expenses. Keeping in view the age of the mother of the deceased i.e. 49 years
the Tribunal applied a multiplier of 13. The Tribunal thus calculated the loss of
dependency as Rs. 26,36,500/-.
6. Learned counsel appearing for the appellant has challenged the Award
amount stating that the Tribunal has wrongly granted 30% increase on account
of future prospects as the deceased was self employed.
7. On the other hand, learned counsel for Respondents has stated that the
Tribunal has applied the wrong multiplier based on the age of the mother of the
deceased and not that of the deceased. He further submits that the Tribunal has
wrongly assessed the income of the deceased on the lower side.
8. As far as the challenge of the appellant to the grant of 30% future
prospects is concerned, it is clearly without merits. In view of the judgment of
the Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors.
(2013) 9 SCC 54 and V.Mekala vs. M.Malathi & Anr., 2014 ACJ 144, the
Tribunal has rightly granted 30% towards future prospects in the income of the
deceased for the calculation of loss of dependency.
9. Even otherwise, I do not wish to interfere in the awarded amount as it
would be not proper to decrease the awarded amount. The Tribunal has used
the multiplier based on the age of the mother i.e., her age being 49 years and a
multiplier of 13 has been used.
10. This Court in several judgments relying upon the judgment of the
Supreme Court in the case of M. Mansoor vs. United India Insurance
Company Ltd.; MANU/SC/1042/2013 and Amrit Bhanu Shali vs. National
Insurance Company Ltd.; MANU/SC/0537/2012 and the judgment of this
High Court in the case of Mohd. Hasnain & Ors. vs. Jagram Meena;
MANU/DE/0715/2014 has held that selection of a multiplier is based on the
age of the deceased and not on the basis of the age of dependants in the case of
a bachelor. In this case the multiplier used by the Tribunal is erroneous and not
as per the judgments of this Court.
11. The Supreme Court in the case of Ranjana Prakash & Ors. vs.
Divisional Manager & Anr., 2011 (8) SCALE 240 held that where the
claimants before the Tribunal have not preferred any cross-objections or cross-
appeals, it is not possible for the High Court in Appeal to enhance the
compensation amount. However, the Supreme Court held that as a ground of
defence the claimants can always point out any error or deficiency in the
Award of the Tribunal as a counter to any contentions raised by the insurance
company or owner of the vehicle to ensure that the computed compensation
amount as per the award is not reduced based on the contention of the owner of
the offending vehicle or the Insurance Company. In para 6 the Supreme Court
held as follows:-
"6. We are of the view that High Court committed an error in
ignoring the contention of the claimants. It is true that the
claimants had not challenged the award of the Tribunal on the
ground that the Tribunal had failed to take note of future
prospects and add 30% to the annual income of the deceased. But
the claimants were not aggrieved by Rs. 23,134/- being taken as
the monthly income. There was therefore no need for them to
challenge the award of the Tribunal. But where in an appeal filed
by the owner/insurer, if the High Court proposes to reduce the
compensation awarded by the Tribunal, the claimants can
certainly defend the quantum of compensation awarded by the
Tribunal, by pointing out other errors or omissions in the award,
which if taken note of, would show that there was no need to
reduce the amount awarded as compensation. Therefore, in an
appeal by the owner/insurer, the Appellant can certainly put forth
a contention that if 30% is to be deducted from the income for
whatsoever reason, 30% should also be added towards future
prospects, so that the compensation awarded is not reduced. The
fact that claimants did not independently challenge the award will
not therefore come in the way of their defending the
compensation awarded, on other grounds. It would only mean that
in an appeal by the owner/insurer, the claimants will not be
entitled to seek enhancement of the compensation by urging any
new ground, in the absence of any cross-appeal or cross-
objections."
12. Accordingly, in my opinion it would not be appropriate for this court to
increase the amount of compensation on the merits of the submission made by
the learned counsel for the respondent on the issue of multiplier and the
assessment of income of the deceased. The said contention is accordingly
rejected.
13. In view of the above, the present appeal is dismissed. The statutory
amount, if any, paid by the appellant at the time of filing of the appeal be
refunded to the appellant.
JAYANT NATH, J
NOVEMBER 10, 2014/rb/sh
