The New India Assurance Co. Ltd. vs Kamaljeet & Ors
2014 Latest Caselaw 4471 Del

$~A-1 to 4
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       Date of decision: 16.09.2014
+     MAC.APP. 948/2013
      THE NEW INDIA ASSURANCE CO. LTD.          ..... Appellant
                      Through Mr.J.P.N.Shahi, Advocate
               versus
      KAMALJEET & ORS                           ..... Respondent

Through Ms.Rupika Singh, Advocate for Mr.Navneet Goyal, Advocate + MAC.APP. 292/2014 KAMALJEET & ORS ..... Appellant Through Ms.Rupika Singh, Advocate for Mr.Navneet Goyal, Advocate versus NEW INDIA ASSURANCE CO LTD ..... Respondent Through Mr.J.P.N.Shahi, Advocate + MAC.APP. 293/2014 KAMALJEET & ORS ..... Appellants Through Ms.Rupika Singh, Advocate for Mr.Navneet Goyal, Advocate versus NEW INDIA ASSURANCE CO LTD ..... Respondent Through Mr.J.P.N.Shahi, Advocate

+ MAC.APP. 951/2013 THE NEW INDIA ASSURANCE CO. LTD ..... Appellant Through Mr.J.P.N.Shahi, Advocate versus KAMALJEET & ORS ..... Respondents Through Ms.Rupika Singh, Advocate for Mr.Navneet Goyal, Advocate

CORAM:

HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH. J. (ORAL)

1. These four appeals are filed against the Award dated 05.08.2013. There are two deceased Ms.Priyanka and Ms. Monica. Two appeals are filed by the Insurance Company challenging the Award. The other two appeals are filed by the claimants/dependents of the two deceased seeking enhancement in the awarded sum.

2. The brief facts are that on 26.10.2010 Sh. Kamaljeet with his two daughters, namely, Ms.Priyanka (first deceased) and Ms.Monika (second deceased) was going on a motorcycle driven by Sh.Kamaljeet. On Rohtak Road, the motorcycle was hit by an offending vehicle driven by Sh. Lalit in a rash and negligent manner. Sh. Kamaljeet suffered injuries and his two daughters Ms.Priyanka and Monica died. Three claim petitions were filed. The three claim petitions were heard together and disposed of by a common Award. The above four appeals pertain only to the compensation awarded to the dependent of the two deceased Ms.Priyanka and Monica.

3. For the deceased Priyanka the Tribunal noted that her age was 17 years on the date of the accident. Although it had been averred that she was doing private tuitions and was earning Rs.10,000/- per month, the Tribunal took the minimum wages on the date of the accident for a matriculate person and took the income of Rs.6,448/-. The Tribunal also noted that she may get married by 21 years. 50% increase was awarded in the assessed income. 50% was deducted on account of personal and living expenses. The Tribunal took a multiplier of 14 and awarded loss of dependency at Rs.8,12,448/-. In addition, the Tribunal awarded Rs.25,000/- towards loss of love and affection, Rs.25,000/- towards funeral expenses and Rs.10,000/- towards loss of estate. Total compensation of Rs.8,72,448/- was awarded to the

claimants.

4. For the deceased Monica, the Tribunal noted that she was 19 years of age. The same compensation was also awarded to the claimants based on the same calculation i.e. Rs.8,72,448/-.

5. Learned counsel appearing for the Insurance Company has made two submissions to impugn the Award in support of the two appeals filed being MAC.APP.948/2013 and MAC.APP.951/2013. He firstly submits that it was a clear case of contributory negligence as he submits that three passengers were travelling on a motorcycle which is contrary to the Motor Vehicles Act, 1988. He relies upon Section 128 of the M.V.Act. Hence he submits that the Tribunal has erroneously not reduced the compensation amount keeping into account that there was contributory negligence on the part of the deceased.

6. He secondly submits that the Tribunal has wrongly enhanced the income by 50%. He submits that both the girls were students and only a notional income could have been taken and the Tribunal has wrongly taken minimum wages and further added future prospects to the same which he submits is erroneous. Hence, he submits that the compensation awarded is on the higher side.

7. I will first deal with the first contention of the Appellant Insurance Company. A perusal of the Award shows that no such plea appears to have been raised before the Tribunal by the Insurance Company. The Tribunal framed only two issues which read as follows:-

"1. Whether the deceased namely Monika and Priyanka suffered fatal injuries and petitioner namely, Sh. Kamaljeet sustained injuries in an accident that took place on 26/10/10 at about 6.15 p.m. involving motorcycle bearing No. HR 61 1436

driven Lalit and owned AC Polymers and insured with the New India Assurance Co. Ltd.? OPP

2. Whether the petitioner/ petitioners is entitled to any compensation? If so, to what amount and from whom?

3. Relief."

8. Clearly there does not appear to be any issue framed regarding the plea of the Insurance Company, namely, of contributory negligence.

9. A perusal of the written statement filed by the Insurance Company shows that no such plea has been raised in the written statement.

10. The Insurance Company has brought on record two witnesses, namely, Sh.Subhash Chander as R3W1, the Investigator and Sh.N.K.Saxena, Assistant in the Insurance Company as R3W2. Neither of the witnesses has mentioned a word about the contributory negligence.

11. In view of the above facts and circumstances, the Insurance Company having not pleaded nor argued the issue before the Tribunal cannot at the appellate stage be permitted to raise the plea about the contributory negligence. The contention is rejected.

12. Coming to the issue of computation of loss of dependency, in my opinion there is no merit in the second contention of the Insurance Company. Reference may be had to the judgment of the Supreme Court in the case of V.Mekala vs. M.Malathi & Anr., 2014 ACJ 1441. That was a case of a student who was 16 years old and studying in XIth class. She was a brilliant student and said to have stood first in her class. In those facts, the permanent disability was assessed at 70%. The Supreme Court keeping into account her past result took her notional income at Rs.10,000/- per month for computing just and reasonable compensation under the head of loss of income. The Supreme Court further keeping in view the judgment in the

case of Santosh Devi vs. National Insurance Co. Ltd. 2012 (6) SCC 421 awarded 50% increase for future prospects. Taking a multiplier of 18, keeping in mind that the assessed disability was 70%, the Supreme Court awarded compensation for loss of income at Rs.22,68,000/-. The Supreme Court further Awarded a sum of Rs.2,00,000/- for pain and sufferings and trauma. A total compensation of Rs.30,93,000/- was awarded.

13. In view of the above, the facts of the present case are somewhat comparable to that of the case of V.Mekala vs. M.Malathi & Anr . (surpa), There are no grounds to interfere in the Award given by the Tribunal as above. Hence, MAC.APP.948/2013 and MAC.APP.951/2013 are dismissed.

14. The Statutory amount if paid by the Insurance Company at the time of filing of the appeal be released to the Insurance Company.

15. I will now deal with the submission of the learned counsel for the claimants in support of their appeal MAC.APP.292/2014 and MAC.APP.293/2014. Learned counsel for the claimants has submitted that the compensation awarded is incorrect as the Tribunal has wrongly taken the multiplier based on the age of the mother and has hence taken the multiplier as 14 while computing loss of dependency. She further submits that the Tribunal has awarded a much lesser amount on account of loss of love and affection and the compensation on this count should have been on a much higher side.

16. As far as the multiplier is concerned, this Court in the case of Mohd. Hasnain & Ors. vs. Jagram Meena & Ors. MANU/DE/0715/2014; 2014 (142) DRJ 303 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.

17. 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 in the Supreme Court in the case Amrit Bhanu Shali & Ors. vs. National Insurance Co. Ltd. & Ors. MANU/SC/0537/2012. The Supreme Court in the case of Amrit Bhanu Shali vs. National Insurance Co.Ltd. (supra) 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."

18. 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. 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.

19. In view of the said judgment passed by this Court in the case of Mohd. Hasnain & Ors. vs. Jagram Meena & Ors (supra), following the judgments of the Supreme Court, the multiplier should be 18 in the facts of this cae. Hence, loss of dependency comes to Rs.10,44,576 [(6448 + 50% - 1/2) x 12 x 18].

20. Now coming to the compensation awarded under the head of loss of love and affection. The Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54 awarded a sum of Rs.1,00,000/- on account of love and affection for the children. Accordingly, in my opinion

the compensation awarded by the Tribunal under the head of love and affection of Rs.25,000/- is inadequate. The same is enhanced to Rs.1,00,000/-.

21. The compensation accordingly works out as follows:-

      Loss of dependency               : Rs. 10,44,576/-
      Love & Affections                : Rs. 1,00,000/-
      Funeral Expenses                 : Rs.25,000/-
      Loss of Estate                   : Rs.10,000/-
      Total                            : Rs.11,78,576/-

22. The Insurance Company may deposit the enhanced amount of compensation as directed in this order along with interest @7.5% per annum from the date of filing of the claim petitions till deposit in court. The Registrar General on receipt of the said amount, shall release the same to the claimants proportionately as per the directions of the Tribunal through UCO Bank, Delhi High Branch, New Delhi.

23. The two appeals MAC.APP.No.292/2014 & MAC.APP.No.293/2014 filed by the claimants stand disposed of.

JAYANT NATH, J SEPTEMBER 16, 2014 rb