Delhi High Court
Icici Lombard General Insurance ... vs Gurdev Maini & Ors on 27 October, 2014
$~A-36 & 37
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision : October 27, 2014
+ MAC.APP. 818/2013
ICICI LOMBARD GENERAL
INSURANCE CO. LTD. ..... Appellant
Through Ms.Manjusha Wadhwa, Advocate.
versus
GURDEV MAINI & ORS ..... Respondents
Through Mr.Jay Savla, Mr.Prabhat K.C. and
Mr.Abhinav Sharma, Advocate for R-1
& 2.
+ MAC.APP. 521/2014
GURDEV MAINI & ANR ..... Appellants
Through Mr.Jay Savla, Mr.Prabhat K.C. and
Mr.Abhinav Sharma, Advocate.
versus
DIN BANDHU & ORS ..... Respondents
Through Ms.Manjusha Wadhwa, Advocate.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J(Oral):
1. MAC.APP. 818/2013 is filed by the appellant Insurance Company
seeking to impugn the Award dated 18.05.2013. MAC. APP.521/2014 is filed
by the claimants seeking enhancement of compensation awarded by the
Tribunal.
2. The background facts are that the deceased Sh.Rahul Maini died due to
an accident on 11.05.2010. He was returning home driving a motorcycle after
offering prayers at Bangla Saheb Gurudwara. His friend Ananya Khosla was
following him by driving his own motorcycle. When they reached near Krishi
Kunj, Ambedkar Gate, the motorcycle of the deceased was hit by an Innova
Car driven by its driver who took a turn without giving any indication or signal
or blowing horn and dashed against the motorcycle. The deceased fell down
and suffered grievous injuries. He was declared brought dead in the hospital.
Based on the evidence on record the Tribunal held that the accident took place
due to the rash and negligent driving of the offending vehicle.
3. On compensation the Tribunal awarded the following compensation:-
1 Loss of dependency (10,125 x12 x 13) Rs.15,79,500/-
2 Loss of love and affection Rs.1,00,000/-
3 For funeral expenses Rs.25,000/-
4 Loss of estate Rs.10,000/-
Total Rs.17,14,500/-
4. The Tribunal noted that the deceased was 20 years old pursing
graduation degree in B.Com. The earning capacity was taken based on his
education qualifications and noting that after completion of graduation, he
would get a salary of at least a clerk. Hence, the notional income of Rs.15,000/-
per month was assessed. The Tribunal noted that he was a bachelor and
deducted 50% for expenses on self. The Tribunal added 50% for future
prospects and applied a multiplier of 13 based on the age of the mother of the
deceased who was 50 years old.
MAC.APP.818/2013
5. Learned counsel appearing for the appellant has made two strong
submissions. She firstly submits that it was a clear case of contributory
negligence. She relies upon the site plan placed on record to submit that the
deceased while travelling could have certainly noticed the Innova car and could
have taken action to avoid the accident. Hence, she submits that it was a clear
case of contributory negligence. She further submits that there are no grounds
to take notional income of the deceased at Rs.15,000/- per month. She submits
that the deceased was doing B.Com by correspondence. She further relies upon
the mark-sheets of the deceased to submit that he was not a good student and
was in receipt of below average marks in his exams. Hence, she submits that a
notional income of Rs.15,000/- is far in excess and should have been much
less.
6. As far as the negligence part is concerned, PW-2 Sh. Ananya Khosla was
on his motorcycle travelling right behind the deceased. He has in his evidence
clearly stated that near Krishi Kunj, Ambedkar Gate, an Innova Car turned
without giving any indication or signal and hit the motorcycle of the deceased.
Thereafter the driver of the offending vehicle instead of helping the deceased
fled from the place. He has confirmed that the deceased was driving the
motorcycle at a normal speed and the accident has taken place due to the
negligent driving of the driver of the offending vehicle who had taken a wrong
turn without giving the signal or indication. There is no cross-examination of
the said witness by any of the defendants.
7. Coming to the site plan filed by the police Ex.PW1/7. The site plan
shows that the accident that has taken place at the crossing when the Innova car
had turned right and hit the motorcycle of the deceased from the side. In my
opinion the site plan does not in any way help the appellants. It does not
indicate that the accident could have been taken place on account of the
contributory negligence of the deceased.
8. In view of the un-rebutted testimony of PW-2, in my opinion there is
enough evidence on record for the Tribunal to conclude that the accident took
place due to the rash and negligent driving of the driver of the offending
vehicle. There is no merit in the first submission of the learned counsel for the
appellant.
9. As far as the second submission is concerned, the educational certificates
of the deceased show that he has cleared All India Secondary School
Examination from CBSE. He had studied in Tagore Public School, Naraina
Vihar. He was doing B.Com from University of Delhi by correspondence as
per Ex.Pw-1/2. In his second year he had obtained 150 marks out of 500 and in
his first year 155 marks out of 425. He was also doing a course titled "GNIIT"
from NIIT, Rajouri Garden as is clear from Ex.PW-1/3. A certificate by NIIT
stating that he had attended UNIX Essentials featuring the Solaris10 Operating
System is also on record. Ex.PW-1/4 shows that he was a keen sportsman.
10. A reference may be had to the judgment of the Supreme Court in the
case of V.Mekala vs. M.Malathi & Anr., 2014 ACJ 1441. The facts and
circumstances of that case were the claimant was a 16 years old girl studying in
XIth Class. She was a brilliant student held first rank in her school. The
Supreme Court held that it would be just and proper keeping in mind her past
result to take a monthly notional income of Rs.10,000/- for computation of just
and reasonable compensation under the head of loss of income. That was a case
in which the claimant had suffered 70% functional disability. The Supreme
Court had awarded a compensation of Rs.30,93,000/-.
11. In my opinion, there are no grounds to interfere with the computation of
notional income as assessed by the Tribunal in the facts and circumstances of
this case. There is enough evidence on record to show that the deceased would
have at least got a job of a clerk as he had already cleared two years of B.Com.
12. There is hence no merit in the present appeal and the same is dismissed.
13. The statutory amount, if any, paid by the appellant at the time of filing of
the appeal may be refunded to the appellant.
CM No.9903/2014 (delay) in MAC.APP. 521/2014
14. There is a delay of 283 days in filing of the cross-appeal.
15. Learned counsel appearing for the appellant submits that the
parents/claimants had lost their only son of 20 years and they were in a state of
depression and shock. Hence, he submits that there is a delay in approaching
this court. There was some delay in engaging the counsel also.
16. For the reasons stated in the application, the application is allowed.
MAC.APP. 521/2014
17. The Tribunal has taken a multiplier of 13 based on the age of the mother
who was 50 years old. The deceased was 20 years old.
18. Coming to the facts of the present case, in my opinion, the Tribunal has
used the wrong multiplier for the purpose of assessing compensation for the
deceased.
19. Reference may be had to the judgment of this Court in the case of Mohd.
Hasnain & Ors. vs. Jagram Meena & Ors, MANU/DE/0715/2014; 2014 (142)
DRJ 303 which held that the multiplier has to be based on the age of the
deceased. That was a case where the age of the deceased was 39 years.
20. This Court in the said case of Mohd. Hasnain & Ors. vs. Jagram Meena
& Ors (supra) relied on the judgments of the Supreme Court in case of M.
Mansoor vs. United India Insurance Co. Ltd., MANU/SC/1042 and the case
Amrit Bhanu Shali & Ors. vs. National Insurance Co. Ltd. & Ors.
MANU/SC/0537/2012. In the later case, the Supreme Court held as follows:-
"15. The selection of multiplier is based on the age of the
deceased and not on the basis of the age of the
dependants. There may be a number of dependants of the
deceased whose age may be different and, therefore, the
age of the dependants has no nexus with the computation
of compensation."
21. M. Mansoor vs. United India Insurance Co. Ltd (supra) was a case
where the deceased was a bachelor of 24 years of age and the Supreme Court
held that the selection of the multiplier is based on the age of the deceased and
not the age of the dependants. Further, in the case of Amrit Bhanu Shali &
Ors. vs. National Insurance Co. Ltd. & Ors. (supra) the deceased was a
bachelor aged 26 years and the Court applied the multiplier of 17.
22. Accordingly the multiplier to be used would be based on the age of the
deceased. He was said to be 20 years of age.
23. Accordingly, keeping into account the judgment of the Supreme Court in
the case of Smt.Sarla Verma and Ors. vs. Delhi Transport Corporation and
Anr., (2009) 6 SCC 121) the multiplier of 18 would be used. Loss of
dependency hence amounts to Rs.24,30,000/- [(15,000/- + 50% -1/2) x 12 x
18]. Total compensation will hence be as follows:-
1 Loss of dependency Rs.24,30,000/-
2 Loss of love and affection Rs. 1,00,000/-
3 For funeral expenses Rs. 25,000/-
4 Loss of estate Rs. 10,000/-
Total Rs.25,65,000/-
24. The appellant has already deposited the compensation amount as per the
Award before the Tribunal. As per order of this court dated 04.09.2013, 60% of
the said award amount was to be released to the claimants.
25. The enhanced compensation alongwith interest @ 7.5% per annum on
the enhanced amount from the date of filing of the claim petition till deposit in
Court would be deposited by the Appellant/Insurance Company within four
weeks from today. On deposit of the said amount, the balance compensation
amount may be released to the claimants in the same proportion as provided for
in the award of the Tribunal.
26. The present appeal stands disposed of.
JAYANT NATH, J
OCTOBER 27, 2014
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