Oriental Insurance Co Ltd vs Pridhi Singh & Ors
2014 Latest Caselaw 4923 Del

$~A-39 & 40
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                     Date of decision:29.09.2014
+     MAC.APP. 695/2012
      ORIENTAL INSURANCE CO LTD        ..... Appellant
                   Through  Mr.A.K.Soni, Advocate

                         versus

      PRIDHI SINGH & ORS                       ..... Respondent
                    Through          Ms.Aruna Mehta, Advocate for R-1 to
                                     R-5

+     MAC.APP. 127/2013
      PRIDHI SINGH & ORS.                      ..... Appellants
                    Through          Ms.Aruna Mehta, Advocate

                         versus

      SHEIKH ABDUL GAFFAR & ANR.       ..... Respondent
                   Through  Mr.A.K.Soni, Advocate for R-2

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. These two appeals are filed seeking to impugn the award dated 12.04.2012.

2. The brief facts which led to the filing of the present proceedings are that Sh. Rishi Pal Singh along with his nephew Vinay Kumar Dahiya and Amit went to Bhopal by Shatabdi Express. There they boarded an Alto Car. He chose to drive the Alto Car as the driver of the car was tired. The

deceased had to go to Indore. Near Sihore, the deceased tried to overtake a vehicle, namely, a Tata Indica. It is said that the said Tata Indica went on the extreme left to give way to the vehicle of the deceased. When the vehicle attempted to overtake the Tata Indica, the said Tata Indica moved to the right side and an accident took place and the vehicle of the deceased became unbalanced and stuck against a tree. The deceased suffered injuries. He was shifted to the hospital but was declared brought dead.

3. Based on the evidence on record, the Tribunal concluded that the accident took place due to the sole negligence on the part of the driver of the Tata Indica.

4. On the issue of compensation, the Tribunal assessed the income of the deceased at Rs. 10,000/- based on the evidence of PW-2- Sh. Prem Chand Jain who was the employer of the deceased. The assessed income was increased by 50% for future prospects as the deceased was 38 years. 1/4 th was deducted for personal expenses as the deceased has left behind his wife, one minor daughter, one minor son and his mother. Hence, loss of dependency was calculated at Rs. 21,60,000/-. Total compensation was awarded as follows:-

Pecuniary Damages

a) Funeral charges Rs.10,000/-

      b)   Loss of consortium                         Rs. 10,000/-
      c)   Loss of dependency                       Rs.21,60,000/-
           Non Pecuniary Damages
      d)   Loss of love and affection etc.             Rs.40,000/-
      e)   Loss of estate                              Rs.10,000/-
                          Total                     Rs.22,30,000/-

MAC APP.695/2012

5. I will first deal with this appeal. This is an appeal filed by the appellant-Insurance Company seeking to impugn the award. Learned counsel for the appellant Insurance Company submits that the deceased was responsible for the accident. He submits that he should have been careful before trying to overtake the Tata Indica car. No indication was given by the Indica car to overtake despite that he attempted to overtake. He further relies upon the Naksha Purcha to state that the accident took place due to hitting the tree and there is no co-relation with the Tata Indica Car. It is further submitted that the future prospects have wrongly been added to the assessed income of the deceased and lastly that the multiplier applicable had to be 15 and not 16.

6. A perusal of the award shows that the Tribunal relied upon the evidence of PW-3 Sh. Vinay Kumar Dahiya who is the nephew of the deceased and an eye witness who was accompanying the deceased in the car. The Tribunal also relied upon the criminal proceedings lodged against the driver of the offending Indica car and the fact that the said driver did not come forward to cross-examine PW-3, the eye witness nor led any evidence.

7. A perusal of the affidavit by way of evidence of PW-3 shows that as per the said eye witness, the driver of the Indica car brought the vehicle towards the left side and abruptly without giving any indication, collided with the front portion of the vehicle driven by the deceased. On account of the collision, the deceased lost balance of the vehicle and it turned to the left side and dashed against the road side tree and turned turtle.

8. In his cross-examination by the appellant Company, he states that there were only two vehicles. The occupants were wearing seat belts. No other question was asked from the said witness. As already noted the driver

of the offending Indica car though a party, has not been examined. In fact the said party did not even file his written statement and his defense was struck off.

9. Keeping in view the un-rebutted evidence of PW-3, the eye witness and the fact that a criminal case is pending against the driver of the Indica car, there are no reasons to differ with the findings recorded by the Tribunal.

10. As far as the issue of future prospects is concerned, reference may be had to the judgment of the Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54. In view thereof, there is no reason to differ with the same.

11. As far as the multiplier is concerned, learned counsel appearing for the claimants accepts that the relevant multiplier should have been '15' and not '16' as used by the Tribunal. Accordingly, the award is modified to that extent.

12. The present appeal stands disposed of.

13. All interim orders stand vacated.

14. Statutory amount, if any, be refunded to the appellant insurance Company.

MAC. APP. 127/2013

15. Learned counsel appearing for the claimants submits that the Tribunal has wrongly deducted 1/4th from the assessed income of the deceased on account of expenses for self as the deceased was, on account of the higher family expenditure, left with a meagre amount to spend on himself. It is urged that only 1/10th of the income of the deceased should have been deducted for expenditure on self. It is further urged that the non-pecuniary compensation, namely, loss of love and affection and loss of consortium has

been awarded on the lower side. It is lastly urged that the cost of litigation should also have been awarded to the claimants.

16. As far as the issue of deduction of personal expenses is concerned, a perusal of the evidence of PW-4, the widow-Smt. Pridhi Singh shows that she claims to be spending Rs.87,000/- toward educational expenses for the children plus Rs. 1,000/- per month on uniform, school shoes, etc. Hence, as per the said witness, out of an annual income of Rs. 1,20,000/-, the deceased was spending almost Rs. 1 lac merely on the school expenses of the children.

17. The Tribunal while calculating the loss of dependency noted that there were four dependants of the deceased at the time of the accident, thus, 1/4th was deducted towards personal and living expenses. Reference may be had to 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, where the Court held that the deduction towards expenses on self should be 1/4th where the number of dependant family members is 4 to 6. In view of the judgment, I do not find any error in the deduction of personal and living expenses by the Tribunal.

18. As far as non-pecuniary compensation is concerned, the Tribunal has awarded Rs. 40,000/- for loss of love and affection and Rs. 10,000/- for loss of consortium. I enhance the compensation on both counts to Rs. 1 lac respectively.

19. The next issue is regarding the litigation expenses. Keeping in view the judgment of the Supreme Court in the case of Kalpanaraj & Ors. vs. Tamil Nadu State Transport Corporation, 2014 ACJ 1388, Syed Sadiq vs. Divisional Manager, United India Insurance Co., 2014 (1) TAC 369 SC

and V.Mekala vs. M.Malathi & Anr., 2014 ACJ 1441, I award Rs. 25,000/- for litigation expenses.

20. The total enhanced compensation now will be as follows:-

      a) Funeral charges                           Rs.10,000/-
      b) Loss of consortium                     Rs. 1,00,000/-
      c) Loss of dependency                     Rs.20,25,000/-
                                   th
          [(Rs.10,000 + 50%) - 1/4 x 12 x
          15]
      d) Loss of love and affection etc.         Rs.1,00,000/-
      e) Loss of estate                            Rs.10,000/-
      f) Litigation expense                       Rs.25,000/-
                        Total                   Rs.22,70,000/-

21. Insurance Company may deposit the additional compensation amount with accumulated interest @ 7.5% per annum from the date of filing of the claim petition till deposit before the Registrar General of this Court. On receipt of the same, the Registrar General shall release the same to the appellants/claimants proportionately in the same manner as directed by the Tribunal.

22. This appeal stands disposed of.

JAYANT NATH, J SEPTEMBER 29, 2014 rb