Reliance General Insurance Co. ... vs Tilak Raj Nayyar & Ors.
2015 Latest Caselaw 2102 Del

$-9
*       IN THE HIGH COURT OF DELHI AT NEW DELHI


                                       Decided on: 11th March, 2015
+       MAC.APP. 923/2012

        RELIANCE GENERAL INSURANCE CO. LTD.
                                            ..... Appellant
                     Through: Mr.A.K. Soni, Advocate

                    versus

        TILAK RAJ NAYYAR & ORS.             ..... Respondents
                     Through: Mr. Sunil Kumar Verma,
                              Advocate for Respondents no.1
                              & 2.
                              Ms. Meena Kohli, Advocate for
                              Respondents no.3 & 4.


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

                             JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The appeal is directed against the judgment dated 07.07.2012

passed by the Motor Accident Claims Tribunal (the Claims

Tribunal) whereby compensation of Rs.15,03,399/- was

awarded for the death of Sunil Nayyar, who suffered fatal

injuries in a motor vehicular accident which occurred on

12.07.2008.

2. On appreciation of evidence, the Claims Tribunal found that the

accident was caused on account of rash and negligent driving of

Maruti Car bearing no.DL-4CF-1641. The Claims Tribunal

accepted the income of the deceased as Rs.1,10,700/- per

annum. Considering four dependants i.e. parents, widow and

one minor daughter, it deducted 1/4th towards personal and

living expenses and applied the multiplier of 15 as per the age

of the deceased to compute the loss of dependency at

Rs.12,45,35/-.

3. The following contentions are raised on behalf of the Appellant:

(i) Father of the deceased was not dependent on the

deceased, deduction towards personal and living expenses

ought to have been 1/3rd instead of 1/4th ;

(ii) As per the report of the Investigator, it was proved that

the licence held by Deepak Kumar Dutta, driver of the

Maruti Car was fake. The Insurance Company ought to

have been granted recovery rights; and

(iii) The counsel's fee of Rs.22,000/- awarded to the counsel

is not in accordance with the Delhi High Court Rules and

under the provision of Motor Vehicles Act, 1988.

4. The appeal is resisted separately on behalf of Respondents no.1

and 2(parents of the deceased) and Respondents no.3 and

4(widow and minor daughter of the deceased).

5. The learned counsel for Respondents no.1 and 2 submits that

the compensation awarded is just and reasonable. It is stated

that however, since there was matrimonial dispute between the

deceased and his wife (Respondent no.3), the share of

compensation awarded to the parents ought to have been more

than what has been awarded by the Claims Tribunal.

6. On the other hand, the learned counsel for Respondents no.3

and 4 submits that considering that the deceased had the

responsibility of the widow and a minor daughter, the

compensation awarded is too meager and small. It is urged that

the deceased had a well settled business of toys and was earning

Rs.35,000/- per month. He was maintaining a Santro car and a

motorcycle and that is why, maintenance @ Rs.7,000/- per

month was awarded under Section 24 of the Hindu Marriage

Act to Respondent no.3 and 4 in the matrimonial proceedings

ongoing between the deceased and Respondent no.3. It is

contended that since the father of the deceased was not

dependent upon the deceased, he was not entitled to any share

in the compensation awarded.

QUANTUM OF COMPENSATION:

7. During the inquiry before the Claims Tribunal, it was proved

that the deceased was dealing in toys. Only one Income Tax

Return (ITR) for the Assessment Year (A.Y.) 2007-08 was filed

by the deceased on 31.03.2008 just a few months before his

death. It is admitted by the learned counsel for the Respondents

that no other ITR was filed. In view of this, I am not inclined

to accept the income of the deceased to be more than

Rs.1,10,700/- per annum.

8. Further, though the father of the deceased was living separately,

in fact, initially the claim petition was filed by the parents of the

deceased wherein the widow and the daughter were also

impleaded. However, Tilak Raj Nayyar, father of the deceased

nowhere claimed that he was financially dependent upon the

deceased. The number of dependants therefore, will be three

instead of four. Consequently, deduction towards personal and

living expenses will be 1/3rd instead of 1/4th as made by the

Claims Tribunal. Since the deceased was aged 40 years and 04

months on the date of accident, the appropriate multiplier will

be 15 as taken by the Claims Tribunal. On making a deduction

of Rs.380/- towards Income Tax, loss of dependency will be

Rs.11,03,200/- (Rs.1,10,700/- -Rs.380 (Income Tax) x 2/3 x

15).

9. In addition, the claimants will be entitled to a sum of

Rs.1,37,400/- towards the treatment of the deceased and

Rs.75,624/- towards cost of medicine as was granted by the

Claims Tribunal.

10. Initially, the trend was to award nominal compensation under

non-pecuniary heads. However, in Rajesh & Ors. v. Rajbir

Singh & Ors., (2013) 9 SCC 54, a three Judge Bench decision of

the Supreme Court, laid down that compensation of

Rs.1,00,000/- each towards loss of love and affection and loss

of consortium, Rs.25,000/- towards funeral expenses and

Rs.10,000/- towards loss to estate has to be awarded. I award

these sums accordingly.

11. The overall compensation is hence, recomputed as under:

  Sl.     Compensation under various     Awarded by Awarded by
                   Heads                 the Claims this Court
 No.                                     Tribunal (in (in Rs.)
                                         Rs.)
 1.      Loss of Dependency                12,45,375/-            11,03,200/-

 2.      Loss of Love and Affection           25,000/-             1,00,000/-

 3.      Loss of Consortium                   10,000/-             1,00,000/-

 4.      Funeral Expenses                       5,000/-             25,000/-

 5.      Loss to Estate                       10,000/-               10,000/-

 6.      Cost of Treatment                  1,37,400/-             1,37,400/-

 7.      Cost of Medicine                     75,624/-               75,624/-

         TOTAL                             15,03,399/-            15,51,224/-

12. The overall compensation hence, comes to Rs.15,51,224/-.

13. The compensation of Rs.15,03,399/- awarded by the Claims

Tribunal therefore, cannot be said to be excessive or exorbitant,

the same is just and reasonable.

COUNSEL FEE:

14. As far as award of sum of Rs.22,000/- towards counsel's fee is

concerned, this Court in ICICI Lombard General Insurance Co.

Ltd v. Kanti Devi & Ors., MAC.APP.645/2012 decided on

30.07.2012 had held that counsel's fee only in accordance with

Rule 1 read with Rule 1A and Rule 9 of Chapter 16 Volume I of

the High Court Rules and Orders can be awarded by the Claims

Tribunal. It was further held that counsel's fee cannot be paid

directly to the counsel. The conclusion in Kanti Devi(supra), as

given in para 32 is extracted hereunder:

"32. To sum up, it is directed :-

(i) The Claims Tribunal is empowered to award costs in a Claim Petition in terms of Section 35 read with Order XXA of the Code.

(ii) The Claims Tribunal is entitled to award the Counsel's fee in accordance with Rule 1 read with Rule 1A and Rule 9 of Chapter 16 Volume I of the Rules extracted earlier.

(iii) In case of compromise/settlement of the claims, the Claims Tribunal is not entitled to go beyond the

settlement reached between the parties. If the settlement does not provide for payment of any Counsel's fee, it shall not be within the domain of the Claims Tribunal to award the Counsel's fee.

(iv) If the compensation is awarded on the basis of DAR in pursuance of the legal offer made by the Insurer, the Claims Tribunal is not empowered to award any costs unless it forms part of the legal offer.

(v) The counsel fee can be directly paid to the counsel only when a specific agreement is filed and the Claimant requires payment of fee directly to the counsel because only then the Claimant would be liable to reimburse the fee or part thereof in case the award is set aside or varied."

15. In view of this, award of counsel's fee of Rs.11,000/- to each

counsel is set aside. However, it will be deemed that the claim

petition has been decreed with costs and Respondents no.1 to 4

shall be entitled to counsel's fee in accordance with para 32 of

Kanti Devi(supra) extracted above.

LIABILITY:

16. It is urged by the learned counsel for the Appellant that the

driving licence of the driver of Maruti Car, on investigation

from the Licensing Authority, Mathura was found to be fake.

Admittedly, no notice was issued to the owner of the car to

produce the driving licence of the driver. In the absence

thereof, it is difficult to say whether the licence which was

allegedly got verified by the Appellant Insurance Company was

seen by the owner at the time of entrusting the vehicle to the

driver. It is well settled that it is not the responsibility of the

owner of the vehicle to visit the Licensing Authority for

verification of the driving licence produced. The initial onus is

on the insurer to prove that there is willful and conscious breach

of the terms and conditions of the insurance policy by the

insured. In the absence of any notice to the owner to produce

the driving licence which was allegedly seen by him, it can be

said that the insurance company has failed to discharge the

initial onus placed upon it to prove that there was a willful and

conscious breach of the terms and conditions of the insurance

policy. The Appellant is therefore, not entitled to recovery

rights against the owner.

SHARES IN COMPENSATION:

17. As far as sharing of the compensation is concerned, it is stated

that the entire amount of treatment was spent by the father of

the deceased. However, it is urged by the learned counsel for

Respondents no.3 and 4 that the amount was paid from the

account of deceased Sunil Nayyar himself. The learned counsel

referred to the statement of accounts placed on the Trial Court

record from the Bank of Baroda, Janakpuri Branch. No

withdrawal was made after the death of the deceased from his

account except the amount of Rs.15,000/- which was paid to the

deceased's widow through clearance of the cheque and another

sum of Rs.1,500/-. It is therefore, clear that the amount of

Rs.2,13,024/- was paid by Respondent no.1, father of the

deceased. Therefore, even if the father is not entitled to any

compensation for loss of dependency, he will get a share in the

compensation awarded towards loss of love and affection.

Instead of sum of Rs.2,03,399/- with proportionate interest, I

award a sum of Rs.2,50,000/- to the father along with

proportionate interest. The compensation awarded to

Respondent no.2 is much less than awarded to Respondents

no.3 and 4, i.e. the widow and the child, I will maintain the

same. Since the father has not been awarded any compensation

towards loss of dependency, Respondent no.3 i.e. the widow

will be entitled to compensation of Rs.4,53,399/- along with

proportionate interest. Respondents no.2 and 4 shall be entitled

to compensation of Rs.3,00,000/- and Rs.5,00,000/- respectively

with proportionate interest as awarded by the Claims Tribunal.

18. The amount awarded to the father (Respondent no.1) shall be

released immediately. Rest of the amount payable to the

Respondents (claimants) shall be released/held in Fixed Deposit

as directed by the Claims Tribunal.

19. The appeal is disposed of in above terms.

20. Pending applications also stand disposed of.

21. Statutory amount, if any, deposited shall be refunded to the

Appellant Insurance Company.

(G.P. MITTAL) JUDGE MARCH 11, 2015 pst