Delhi High Court
Oriental Insurance Co Ltd vs Kanta Devi & Anr on 17 July, 2015
Author: Jayant Nath
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 17.07.2015
+ MAC.APP. 338/2011
ORIENTAL INSURANCE CO LTD ..... Appellant
Through Mr.Vijay Singh and Mr.Abhishek
Kumar, Advocates
versus
KANTA DEVI & ANR ..... Respondent
Through Mr.T.N.Tyagi, Advocate for R-1 and
R-2
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.
1. The present appeal is filed by the appellant/insurance company
seeking to impugn the Award dated 3.2.2011.
2. The deceased Sanjeev Kumar alongwith his brother Kapil Kumar was
returning home on the motorcycle on 11.9.2005. The deceased was driving
the motorcycle. When they reached Dhaula Kuan, the motorcycle was hit
from the back side by a truck said to be driven by respondent No.3. The
deceased Sanjeev Kumar died on the spot. Kapil his brother received minor
injuries. Based on the evidence on record the Tribunal concluded that the
accident took place due to the rash and negligent driving of respondent
No.3.
3. On compensation the Tribunal noted that the deceased Sanjeev Kumar
was 26 years of age on the date of the accident. He was a commerce
graduate from Delhi University and had done number of Certificate courses.
He was running a coaching institute in his locality and was said to be
earning Rs.10,000/- per month. The Tribunal also noted that the deceased
had done a Certificate course of computing from IGNOU, Certificate course
of Master Computer Development, certificate course in Quality
Management Programme from NIIT etc. and was pursuing MCA from
IGNOU. The Tribunal noted receipts of the coaching institute for the
months of May 2005 to August 2005 and computed the average receipt as
Rs.5,850/- per month. The Tribunal thereafter held that the deceased given
the nature of qualifications after completion of his various professional
courses would have earned Rs.10,000/- per month easily. Accordingly, the
Tribunal took the income of the deceased as 10,000 + 5,850 = 15,850/-. The
Tribunal also increased it by 50% on account of future prospects. The
deceased was a bachelor and a multiplier of 14 was taken based on the age
of the mother which was taken as 42. 50% was deducted on account of
personal expenses. A total compensation for loss of income of
Rs.19,97,184/- was awarded. Total compensation was awarded as follows:-
1. Loss of income Rs.19,97,184/-
2. Loss of love and affection Rs.40,000/-
3. Last rites expenses Rs.20,000/-
Total Rs.20,57,184/-
4. Learned counsel appearing for the appellant has strongly challenged
the computation of income assessed by the Tribunal for the purpose of
computing loss of dependency. It is urged that the assessment of income of
Rs.10,000/- per month is entirely erroneous. To enhance the available
income in this manner was totally uncalled for. Challenge is also made to
the enhancement of the assessed income by 50% on account of future
prospects.
5. In my opinion, there is no merit in the contentions of the appellant.
This Court has repeatedly in various judgments including in MAC App.
No.779/2014 titled Oriental Insurance Company Limited vs. Nazrin
Begum relying upon judgments of the Supreme Court in M. Mansoor vs.
United India Insurance Co. Ltd., MANU/SC/1042/2013 and Amrit Bhanu
Shali and Ors. vs. National Insurance Co. Ltd. and
Ors. MANU/SC/0537/2012 has held that the multiplier has to be based on
the age of the deceased and not on the basis of age of the dependents.
Though the claimants have not filed any cross appeal, the Supreme Court in
the case of Ranjana Prakash vs. Divisional Manager 2011 ACJ 2418 has
held that in the circumstances where no cross-appeal is filed the respondent
can defend the compensation awarded by the Tribunal before the High Court
on grounds which could have been urged in cross-appeal, so that, the
compensation amount may not be reduced . Relevant portion of the said
judgment reads as follows:-
"6. We are of the view that High Court committed an error in
ignoring the contention of the claimants. It is true that the
claimants had not challenged the award of the Tribunal on the
ground that the Tribunal had failed to take note of future
prospects and add 30% to the annual income of the deceased.
But the claimants were not aggrieved by Rs. 23,134/- being
taken as the monthly income. There was therefore no need for
them to challenge the award of the Tribunal. But where in an
appeal filed by the owner/insurer, if the High Court proposes to
reduce the compensation awarded by the Tribunal, the
claimants can certainly defend the quantum of compensation
awarded by the Tribunal, by pointing out other errors or
omissions in the award, which if taken note of, would show that
there was no need to reduce the amount awarded as
compensation. Therefore, in an appeal by the owner/insurer, the
Appellant can certainly put forth a contention that if 30% is to
be deducted from the income for whatsoever reason, 30%
should also be added towards future prospects, so that the
compensation awarded is not reduced. The fact that claimants
did not independently challenge the award will not therefore
come in the way of their defending the compensation awarded,
on other grounds. It would only mean that in an appeal by the
owner/insurer, the claimants will not be entitled to seek
enhancement of the compensation by urging any new ground, in
the absence of any cross-appeal or cross-objections."
6. As the multiplier has been wrongly taken to compute the loss of
dependency, there is no merits in the submission of the appellant.
7. Even otherwise, in my opinion, no error can be found in the approach
of the Tribunal in assessing the income of the deceased at Rs.10,000/- per
month. Reference in this context may be had to the case of V.Mekala vs.
M.Malathi & Anr., 2014 ACJ 1441 where the Supreme Court in the case of
a student who was studying in Class XI aged 16 years had assessed the
income at Rs.10,000/- per month.
8. There is no merit in the present appeal. Same is dismissed
accordingly. All interim orders stand vacated. In case any amount is lying
deposited in fixed deposit same may be released to the claimants. Statutory
amount, if any, deposited by the appellant/insurance company may be
released to the appellant.
(JAYANT NATH, J.)
JUDGE
JULY 17, 2015
n
