Delhi High Court
Daroga Mal Saini & Anr. vs Mohd Fiyaz Khan & Ors on 24 February, 2015
$-11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 24th February, 2015
+ MAC.APP. 617/2012
DAROGA MAL SAINI & ANR.
..... Appellants
Through: Mr.Mohit Kumar Gupta,
Advocate
versus
MOHD FIYAZ KHAN & ORS ..... Respondents
Through: Ms. Rakhi Dubey, Advocate for
Respondent no.3 Insurance
Company.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The appeal is for enhancement of compensation of
Rs.8,52,448/- awarded by the Motor Accident Claims Tribunal
(the Claims Tribunal) for the death of Tarun Saini who died in
a motor vehicular accident which occurred on 23.10.2010.
2. During inquiry before the Claims Tribunal, it was claimed that
deceased Tarun Saini was a self employed person running a
shop and dealing in items like CD, DVD etc. at Khijrabad, New
Delhi. It was claimed that the deceased was having an income
of Rs.30,000/- per month and he was maintaining Savings Bank
Account no.2007101013471 in Canara Bank. He was also
pursuing Bachelor of Arts through Correspondence from Delhi
University, South Campus.
3. On appreciation of evidence, the Claims Tribunal found that the
accident was caused on account of rash and negligent driving of
bus no.DL-1PB-0654. In the absence of any documentary
evidence with regard to the deceased's income, the Claims
Tribunal took minimum wages of a matriculate at Rs.6,448/- per
month, added 50% towards future prospects, deducted 1/2
towards personal and living expenses and applied the multiplier
of 14 to compute the loss of dependency at Rs.8,12,448/-. The
Claims Tribunal further awarded certain sums towards non-
pecuniary damages to compute the overall compensation of
Rs.8,52,448/-.
4. It is urged by the learned counsel for the Appellants that the
compensation awarded is too meagre and unjust considering the
claim of the Appellants that the deceased was earning
Rs.30,000/- per month. The learned counsel for the Appellants
refers to the Passbook (mark 'B') in respect of Savings Bank
Account being maintained by the deceased which reveals that
there were a number of transactions going on since the year
2007.
5. On the other hand, the learned counsel for Respondent no.3
urges that the compensation awarded is already on the higher
side and in the absence of any evidence with regard to income,
the Claims Tribunal rightly took the minimum wages of a
matriculate to compute the loss of dependency. It is stated that
no addition towards future prospects was permissible in the
absence of any evidence with regard to the same.
6. I have the Trial Court record before me. Smt. Veena Saini,
mother of the deceased filed her Affidavit by way of evidence.
She testified that the deceased was running a shop of musical
items like CD, DVD etc. at Khijrabad, New Delhi and was
earning Rs.30,000/- per month. In her cross-examination, she
could not give the particulars of the shop which was being run
by the deceased. She showed her ignorance when asked, if her
son was being assessed to Income Tax. Admittedly, no Income
Tax Return (ITR) was placed on record. Therefore, it is
difficult to say that the deceased was having an income of
Rs.30,000/- per month. All the more, even particulars of the
shop were not given. But, at the same time, evidence in the
shape of Savings Bank Account Passbook (mark 'B') placed on
record definitely reveals that the deceased was a self employed
person. There were a number of transactions since 31.01.2007
when the Account was opened. In such circumstances, it
becomes very difficult to make correct assessment of the
income of the deceased. I would make a guess work and assess
the income of the deceased to be Rs.10,000/- per month as
against the income of Rs.6,448/- per month for a matriculate as
taken by the Claims Tribunal.
7. In view of the decision of the Supreme Court in Reshma Kumari
& Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 and the
judgment of this Court in HDFC Ergo General Insurance Co.
Ltd. v. Smt. Lalta Devi and Ors. MAC APP No. 189/ 2014
decided on 12.01.2015, it is well settled that in the absence of
any evidence with regard to future prospects, addition in the
income of deceased or injured towards the same is not
permissible. The loss of dependency therefore, comes to
Rs.8,40,000/- (Rs.10,000/- x 1/2 x 12 x 14).
8. In view of the three Judge Bench decision of the Supreme Court
in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54, the
Appellants are entitled to a sum of Rs.1,00,000/- towards loss of
love and affection, Rs.25,000/- towards funeral expenses and
Rs.10,000/- towards loss to estate.
9. The overall compensation thus, comes to Rs.9,75,000/-
10. The compensation is enhanced by Rs.1,22,552/- which shall
carry interest @ 7.5% per annum from the date of filing of the
petition till its payment.
11. Respondent no.3 National Insurance Company Ltd. proved that
there was willful and conscious breach of the terms and
conditions of the insurance policy by the insured and therefore,
making the Insurance Company initially liable to pay the
compensation, it was granted recovery rights.
12. The proposition is well settled that even in case of willful
breach of the terms and conditions of the insurance policy, the
insurer will satisfy the third party claim and then may recover
the same from the insured. A reference may be made to the
judgment of this Court in Oriental Insurance Company Limited
v. Rakesh Kumar and Others, 2012 ACJ 1268 and other appeals
decided by a common judgment dated 29.02.2012, where this
question was dealt in great detail.
13. The finding on liability has not been challenged by Respondent
no.2, who is the owner of the vehicle and was made liable to
reimburse the compensation to the Insurance Company. I
therefore, affirm the said finding of the Claims Tribunal and
hold that although the Insurance Company will be initially
liable to pay the enhanced compensation, but it shall be entitled
to later recover the same from the owner (Respondent no.2
herein) in execution of this very judgment without having
recourse to independent recovery proceedings.
14. The enhanced compensation shall be deposited by Respondent
no.3 Insurance Company with the Claims Tribunal within six
weeks.
15. 50% of the enhanced compensation shall be held in Fixed
Deposit for a period of two and four years respectively in equal
proportion. Rest of the amount shall be released on deposit.
16. The appeal is allowed in above terms.
17. Pending applications stand disposed of.
(G.P. MITTAL)
JUDGE
FEBRUARY 24, 2015
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