Icici Lombard General Insurance ... vs Sita Ram Garg & Ors.
2015 Latest Caselaw 449 Del

$-14
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Decided on: 19th January, 2015
+       MAC.APP. 314/2012

        ICICI LOMBARD GENERAL INSURANCE CO. LTD.
                                               ..... Appellant
                      Through: Ms.Suman Bagga, Advocate

                    versus

        SITA RAM GARG & ORS.                      ..... Respondents
                     Through:         Mr. Kuldeeep Kumar, Advocate
                                      with Mr. Manish Garg,
                                      Advocate for Respondents no.1
                                      to 3.


        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL

                             JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellant impugns judgment dated 25.11.2011 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby compensation of Rs.8,18,662/- was awarded in favour of Sita Ram Garg, father of deceased Amit Kumar, who died in a motor vehicular accident which occurred on 20.11.2010.

2. It is urged by the learned counsel for the Appellant that the deceased was a bachelor aged 29 years. Sita Ram Garg, father

of the deceased was aged 56 years and thus, he cannot be considered a dependant and only 15% of the deceased's income could have been awarded towards loss to estate as the deceased was to get married in due course and was to support his own family as well. The deceased had two brothers aged 35 and 32 years and thus, the father cannot be said to be solely dependent on the deceased.

3. On the other hand, the learned counsel for Respondents no.1 to 3 submits that the compensation awarded is too small and meagre. The deceased was a highly qualified person as he was not a graduate as taken by the Claims Tribunal but was a post- graduate in Political Science and had also completed M.Phil. It is urged by the learned counsel for the Respondents that the compensation awarded is liable to be enhanced.

4. I have before me the Trial Court record. Sita Ram Garg, father of the deceased filed his Affidavit Ex.PW1/A. He testified that he was solely dependent on the deceased. He further deposed that Rajiv Garg, another brother of the deceased Amit Kumar was handicapped and was also fully dependent upon the deceased Amit Kumar. Sita Ram Garg was subjected to cross- examination. He was categorical that he was unemployed and was not earning anything. He further added that his son Sanjay was working but his third son Rajiv was not earning. The testimony of PW1 Sita Ram Garg that Rajiv was handicapped was also not challenged in cross-examination. In view of this, I

am not inclined to agree with the submission raised on behalf of the Appellant Insurance Company that the legal representatives are not entitled to any compensation towards loss of dependency. Following Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, I shall assume that in the circumstances of the case, 50% of the income shall be taken as the personal and living expenses of the deceased and loss of dependency has to be determined on the balance of 50%.

5. Now, the question is what was the income of deceased Amit Kumar. Evidence was led that deceased Amit was getting a sum of Rs.15,000/- per month. A salary certificate was produced, but the same was disbelieved and the loss of dependency was awarded taking the income of the deceased to be that of a graduate as per the Minimum Wages Act, 1948. Evidence was also led that the deceased Amit had bright future prospects and he could have been earning Rs.50,000/- per month in future.

6. Qualifications of the deceased Amit Kumar to the effect that he was M.A. in Political Science and M.Phil. was established from the certificates placed on record before the Claims Tribunal. Averments made in the Affidavit with regard to qualifications were also not challenged. Considering the qualifications of the deceased, even if the salary certificate is not believed, his financial income as per his qualifications ought to have been taken as Rs.15,000/- per month which was claimed by the

claimants. The loss of dependency thus comes to Rs.8,10,000/- (Rs.15,000 x 1/2 x 12 x 9).

7. The Claims Tribunal had awarded a sum of Rs.1,00,000/.-, Rs.25,000/- and Rs.5,000/- towards loss of love and affection, funeral expenses and loss to estate respectively. The same being in consonance with the settled law, I find no ground to interfere with the same.

8. The total compensation therefore comes to Rs.9,40,000/-.

9. It is urged by the learned counsel for the Appellant that in the absence of any cross-objections, the Court is not empowered to enhance the compensation. The question was dealt with at great length by this Court in Oriental Insurance Company Limited v. Mamta Kumar & Ors., MAC APP.629/2010, decided on 06.09.2012. In paras 13 to 19, this Court held as under:

"13. The theory of not awarding compensation more than the amount claimed got a sea change with the judgment of the Supreme Court in Nagappa v. Gurudayal Singh & Ors., (2003) 2 SCC 274, wherein the Supreme Court held that there is no restriction that compensation could be awarded only up to the amount claimed by the Claimant. In an appropriate case where from the evidence brought on record if the Tribunal/Court considers that claimant is entitled to get more compensation than claimed, the Tribunal may pass such an award. The Supreme Court said that the only embargo was; that it should be „just‟ compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable. Para 21 of the report is extracted hereunder:

"21. In our view, under the M.V. Act, there is no restriction that Tribunal/Court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/Court is to award „just‟ compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under Sub-section(4) to Section 166, even report submitted to the Claims Tribunal under Sub-section (6) of Section 158 can be treated as an application for compensation under the M.V. Act, If required, in appropriate cases, Court may permit amendment to the claim Petition."

14. In National Insurance Company Ltd. v. Rani, 2006 ACJ 1224, a Division Bench of Madras High Court held that without filing any Appeal or Cross-Objections, High Court is competent to enhance the compensation in favour of a victim of a motor vehicle accident by invoking provisions of Order XLI Rule 33 Code of Civil Procedure(Code). Para 16 of the report is extracted hereunder:

"16. At the risk of repetition it may be stated that the contention put forward is that the Court is duty bound to fix the just compensation. The fact that the Claimants have not filed any cross objection would not stand in the way and further the Court can by invoking the powers conferred under Order XLI Rule 33 of CPC, is satisfied, can enhance the compensation and call upon the Claimants to pay necessary court fee. In that context, the learned counsel also submitted, when the Supreme Court has ruled that even at the appellate stage original petition can be amended claiming enhanced compensation, the Court

enhancing compensation in the instant case, if satisfied, invoking powers under Order XLI, Rule 33 will certainly be in order."

15. In Oriental Fire and General Insurance Co. Ltd. v. Amarsingh Pratapsingh Sikliker, 1(1993) ACC 627, a Division Bench of Gujarat High Court held that the Appellate Court was empowered to grant adequate compensation so as to do substantial justice between the parties even in absence of Cross-Objections or Appeal. Para 17 of the report is extracted hereunder:

"17. It becomes very clear from the aforesaid provisions that the appellate Court is empowered to grant adequate relief so as to do substantial justice between the parties even in absence of cross- objections or appeal...."

16. In Sone Ram v. Jayaprakash, AIR 1986 MP 21, the High Court of Madhya Pradesh exercising power under Order XLI Rule 33 of the Code enhanced the compensation granted by the Claims Tribunal even though no Appeal was preferred by the Claimant. In the case of Sewaram alias Sewan v. Nanhe Khan alias Asgar Beg, 1987 ACJ 354(MP), the High Court of Madhya Pradesh awarded 10% interest on the compensation amount in the absence of any Appeal or Cross- Objections by the Claimants.

17. A learned Single Judge of this Court in National Insurance Co. Ltd. v. Komal & Ors., MANU/DE/2870/2012, (MAC. APP. No.595/2007 decided on: 27.04.2012) referred to the judgments of the Supreme Court in Pannalal v. State of Bombay, AIR 1963 SC 1516; Rameshwar Prasad v. M/s Shyam Beharilal Jagannath, (1964) 3 SCR 549; Nirmal Bala Ghose v. Balai Chand Ghose, AIR 1965 SC 1874; Giasi Ram v. Ramjilal, AIR 1969 SC 1144; Harihar Prasad Singh v.

Balmiki Prasad Singh, (1975) 2 SCR 932; Mahant Dhangir v. Madan Mohan, (1988) 1 SCR 679; State of Punjab v. Bakshish Singh, (1999) 8 SCC 222 and judgments of various High Courts to opine that the High Court is empowered to enhance the compensation without filing any Appeal or Cross-Objections by a Claimant.

18. In Ibrahim v. Raju, AIR 2012 SC 534, a compensation of `3,00,000/- was claimed by the Appellant which resulted in an award of `60,000/- by the Claims Tribunal. The compensation was enhanced to `1,89,440/- by the High Court, which was enhanced to `6,00,000/- by the Supreme Court. Para 21 of the report is extracted hereunder:

"21. We are conscious of the fact that in the petition filed by him, the Appellant had claimed compensation of Rs. 3 lacs only with interest and cost. It will be reasonable to presume that due to financial incapacity the Appellant and his family could not avail the services of a competent lawyer and make a claim for adequate compensation. However, as the Tribunal and the High Court and for that reason this Court are duty bound to award just compensation, (emphasis supplied) we deem it proper to enhance the compensation from Rs. 1,89,440/- to Rs. 6 lacs. This approach is in tune with the judgment in Nagappa v. Gurudayal Singh, (2003) 2 SCC 274. In that case, the Court considered a similar issue, referred to the judgments of the Bombay High Court in Municipal Corporation of Greater Bombay v. Kisan Gangaram Hire, 1987 ACJ 311(Bombay), Orissa High Court in Mulla Mod. Abdul Wahid v. Abdul Rahim,1994 ACJ 348 (Orissa) and Punjab and Haryana High Court in Devki Nandan Bangur v. State of Haryana, 1995 ACJ 1288 (P & H)."

19. In New India Assurance Co. Ltd. v. Gopali & Ors., Civil Appeal No.5179 of 2012 (arising out of SLP (C) No.11345 of 2007) decided by the Supreme Court on 05.07.2012, the New India Assurance Co. Ltd. challenged an award of compensation of `6,45,300/-. The compensation was, however, enhanced to `10,63,040/- by the Supreme Court."

10. It is therefore, evident that even without any cross-objections being filed the Claims Tribunal and the High Court can grant compensation more that what is claimed by a victim in a motor vehicular accident.

11. The compensation is accordingly enhanced by Rs.1,21,338/-

which shall carry interest @ 7.5% per annum from the date of filing of the claim petition/DAR upto the date of deposit of the compensation.

12. Respondent no.1, father of deceased Amit Kumar shall be entitled to 75% of the enhanced compensation. Rest 25% shall go to Respondent no.3, who is the handicapped brother of deceased Amit Kumar.

13. On deposit, 70% of the enhanced compensation shall be held in Fixed Deposit for a period of two, four and six years in equal proportion. Rest 30% shall be released on deposit.

14. The Appellant Insurance Company is directed to deposit the enhanced compensation with UCO Bank, Delhi High Court Branch within six weeks from today.

15. The appeal is disposed of accordingly.

16. Pending applications also stand disposed of.

17. Statutory amount of Rs.25,000/-, if any, shall be refunded to the Appellant Insurance Company.

(G.P. MITTAL) JUDGE JANUARY 19, 2015 pst