Delhi High Court
Shriram General Insurance Co. ... vs Umesh Jain & Ors on 10 October, 2014
$~A-39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 10.10.2014
+ MAC.APP. 910/2014
SHRIRAM GENERAL INSURANCE CO. LTD. ..... Appellant
Through Mr. K.L. Nandwani, Adv.
versus
UMESH JAIN & ORS ..... Respondents
Through None
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. The present appeal is filed by the appellant Insurance Company
seeking to impugn the common Award dated 04.07.2014 disposing of two
claim petitions.
2. The brief facts are that on 06.08.2012, the deceased, Mahender Kumar
Jain alongwith M.L. Jain were travelling in a car which was driven by one
Sh. Illyas Patil. When they reached near Kuchi in Kavathe Mahankal Block
on Meeraj Pandhar Pur Road, a carrier truck driven by Respondent no.2
carelessly on the wrong side, dashed against the car of the deceased.
Mahender Kumar Jain alongwith the driver of the car and M.L Jain suffered
grevious injuries and died.
3. Based on the evidence on record, the Tribunal concluded that the
accident was caused due to rash and negligent driving of Respondent no.2.
4. The Tribunal awarded the following compensation:-
Sl.No. Description Amount
1 Loss of Estate Rs.8,54,523/-
2 Funeral Expenses Rs.25,000/-
3 Love and Affection Rs.1,00,000/-
Total Rs.9,79,523/-
5. The Tribunal after taking note of the Income Tax Returns of the
deceased took the annual income of the deceased to be Rs.5,12,714/-. No
future prospects were awarded as the age of the deceased was 72 years at the
time of the accident. Taking the multiplier of 5 the total loss of income was
calculated as Rs.25,63,570/-. The Tribunal further noted as there are no
dependants of the deceased and hence 1/3rd of his income will be awarded
as loss of estate to the claimants which comes to Rs.8,54,523/-.
6. Learned counsel appearing for the appellant urges that as none of the
claimants were financially dependent upon the deceased the claimants were
not entitled to any compensation for loss of dependency. It is urged that the
Tribunal has erroneously awarded Rs.8,54,523/- as loss of estate without any
basis. Learned counsel further states that the said compensation awarded is
contrary to the judgment of the Supreme Court in the case of Smt.Manjuri
Bera vs. The Oriental Insurance Co. Ltd. & Anr., 2007ACJ1279,
MANU/SC/1978/2007.
7. Reference may be had to the judgment of this High Court in the case
of Keith Rowe vs. Prashant Sagar & Ors., 2011 ACJ 1734. This court in
the said judgment stated that there would be loss of estate in the absence of
any dependency and loss of estate should be taken as 1/3rd of the income of
the deceased. In para 19 this Court held as follows:-
"19. We may summarise the principles enunciated, thus:
....
(iii) Where the claim by the legal representatives of the
deceased who were not dependants of the deceased, then the
basis for award of compensation is the loss to the estate, that is
the loss of savings by the deceased.
A conventional sum for loss of expectation of life, is added.
(iv) The procedure for determination of loss to estate is broadly
the same as the procedure for determination of the loss or
dependency. Both involve ascertaining the multiplicand and
capitalising it by multiplying it by an appropriate multiplier.
But, the significant difference is in the figure arrived at as
multiplicand in cases where the claimants who are dependants
claim loss of dependency, and in cases where the claimants who
are not dependents claim loss to estate. The annual contribution
to the family constitutes the multiplicand in the case of loss of
dependency, whereas the annual savings of the deceased
becomes the multiplicand in the case of loss to estate. The
method of selection of multiplier is however the same in both
cases."
8. Coming to the judgment cited by the learned counsel for the appellant,
namely, Smt.Manjuri Bera vs. The Oriental Insurance Co. Ltd. &
Anr.(supra). There is nothing in that judgment which would persuade this
court to hold that it has held something contrary to the judgment of this High
Court in the case of Keith Rowe vs. Prashant Sagar & Ors.(supra). That
was a case in which the deceased who lost his life had no other legal heir
except a married daughter. The Tribunal had dismissed the claim petition
accepting the stand of the insurer that as the claimant was not dependent
upon the deceased, there was no question of any compensation being paid.
The High Court approved the said judgment of the Tribunal.
9. The Supreme Court while interpreting Sections 166 of the M.V.Act
and the definition of legal heir as contained in Section 2(11) of the CPC held
as follows:-
"11. There are several factors which have to be noted. The
liability under Section 140 of the Act does not cease because
there is absence of dependency. The right to file a claim
application has to be considered in the background of right to
entitlement. While assessing the quantum, the multiplier system
is applied because of deprivation of dependency. In other
words, multiplier is a measure. There are three stages while
assessing the question of entitlement. Firstly, the liability of the
person who is liable and the person who is to indemnify the
liability, if any. Next is the quantification and Section 166 is
primarily in the nature of recovery proceedings. As noted
above, liability in terms of Section 140 of the Act does not
cease because of absence of dependency. Section 165 of the Act
also throws some light on the controversy. The explanation
includes the liability under Sections 140 and 163A.
12. Judged in that background where a legal representative who
is not dependant files an application for compensation, the
quantum cannot be less than the liability referable to
Section 140 of the Act. Therefore, even if there is no loss of
dependency the claimant if he or she is a legal representative
will be entitled to compensation, the quantum of which shall be
not less than the liability flowing from Section 140 of the Act.
The appeal is allowed to the aforesaid extent. There will be no
order as to costs. We record our appreciation for the able
assistance rendered by Shri Jayant Bhushan, the learned
Amicus Curiae."
10. Justice S.H.Kapadia in a separate and a concurrent judgment held as
follows:-
"17. In my opinion, "No Fault Liability", envisaged in
Section 140 of the said Act, is distinguishable from the rule of
"Strict Liability". In the former, the compensation amount is
fixed. It is Rs. 50,000/- in cases of death [Section 140(2)]. It is a
statutory liability. It is an amount which can be deducted from
the final amount awarded by the Tribunal. Since, the amount is
a fixed amount/crystallized amount, the same has to be
considered as part of the estate of the deceased. In the present
case, the deceased was an earning member. The statutory
compensation could constitute part of his estate. His legal
representative, namely, his daughter has inherited his estate.
She was entitled to inherit his estate. In the circumstances, she
was entitled to receive compensation under "No fault Liability"
in terms of Section 140 of the said Act. My opinion is confined
only to the "No Fault Liability" under Section 140 of the said
Act. That section is a Code by itself within the Motor Vehicles
Act, 1988."
11. The Supreme Court hence in these facts where the only daughter was
not dependent on the deceased held that the legal representatives of the
deceased would be entitled to file application for compensation and the
quantum of compensation cannot be less than what is stipulated in Section
140 of the Act.
12. The judgment of the Supreme Court in the said case of Smt.Manjuri
Bera vs. The Oriental Insurance Co. Ltd. & Anr.(supra) does not forbid
the Tribunal from granting compensation for loss of estate where there is no
loss of dependency of any of the legal representatives of the deceased. Loss
of estate would be part of „just compensation‟ as provided under Section 168
of MV Act.
13. In the light of the above legal position, in my view there are no
grounds to interfere with the findings of the Tribunal. There is no merit in
the contention of the learned counsel for the appellant.
14. The appeal is dismissed.
15. The statutory amount if deposited be refunded to the learned counsel
for the appellant.
JAYANT NATH, J
OCTOBER 10, 2014
sh
