Delhi High Court
New India Assurance Co. Ltd. vs Sunny And & Ors. on 18 March, 2015
Author: G.P. Mittal
$-41
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 18th March, 2015
+ MAC.APP. 787/2012
NEW INDIA ASSURANCE CO. LTD.
..... Appellant
Through: Mr.Pankaj Seth, Advocate
versus
SUNNY AND & ORS. ..... Respondents
Through: Ms. Surabhi Rai, Advocate for
Respondents no.1 to 3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. There is twin challenge to the judgment dated 26.04.2012
passed by the Motor Accident Claims Tribunal (the Claims
Tribunal) whereby compensation of Rs.4,74,580/- was awarded
in favour of Respondents no.1 to 3 for the death of Banwari Lal
who suffered fatal injuries in a motor vehicular accident which
occurred on 25.09.2009 at 5:15 a.m. while the deceased was
sleeping on a cot outside his Jhuggi at F-Block, New Power
House, J.J. Colony, Bawana, Delhi.
2. It is urged by the learned counsel for the Appellant that the
Claims Tribunal dealt with the aspect of negligence and simply
awarded the compensation on the basis that a criminal case has
been registered against the driver. It is also urged that the
compensation towards non-pecuniary damages is on the higher
side and that the counsel's fee and out of pocket expenses were
not permissible.
3. The case set up by the claimants was that while the deceased
was fast asleep, the driver of truck bearing no.HR-69-5966
unmindful of the fact that somebody was sleeping on a cot
outside the Jhuggi reversed the truck in a rash and negligent
manner and crushed the deceased.
NEGLIGENCE:
4. In para 9 of the petition the manner of accident was described
by Respondents no.1 to 3. It was specifically stated that while
the deceased was sleeping on a cot outside his Jhuggi, the truck
bearing no.HR-69-5966 being driven in a rash and negligent
manner by Respondent no.4 was reversed and ran over the
deceased. In the Written Statement, these facts were not
controverted by the driver and the owner. The Insurance
Company also denied the averments for want of knowledge.
There was implied admission on the part of the driver and the
owner by not traversing the averments made in the claim
petition. Otherwise also, the manner of accident sufficiently
established negligence on the part of the driver, Respondent
no.4.
COMPENSATION:
5. The Claims Tribunal awarded a sum of Rs.2,84,580/- towards
loss of dependency on the basis of minimum wages of an
unskilled worker and awarded a sum of Rs.1,90,000/- towards
pecuniary and non-pecuniary damages, in addition to a sum of
Rs.25,000/- towards counsel's fee and Rs.5,000/- towards out of
pocket expenses.
6. It is urged by the learned counsel for the Appellant that the
compensation awarded towards non-pecuniary damages is on
the higher side and the compensation awarded towards
counsel's fee and out of pocket expenses is not in accordance
with law and the Rules framed by the Delhi High Court.
7. On the other hand, the learned counsel for Respondents no.1 to
3 supports the impugned judgment. She submits that the
compensation awarded is on the lower side. However, she
agrees that the counsel's fee could not have been specified and
that the award of Rs.5,000/- towards out of pocket expenses was
illegal.
8. During inquiry before the Claims Tribunal, it was claimed that
deceased Banwari Lal was working as a black smith.
Averments in this regard were made in the claim petition and
the income from the profession of black smith was stated to be
Rs.7,000/- per month. The deceased had left behind three minor
children, two sons and a daughter. The claim petition was filed
through their next friend Kallu. Sunny, one of the sons of the
deceased who had attained the age of 18 years during the
pendency of the claim petition, filed his Affidavit Ex.PW1/A in
support of his father's profession and income. Sunny's
testimony that his father was working as a black smith was not
disputed in the cross-examination. Even a suggestion was not
put to the witness. Thus, the Claims Tribunal ought to have
accepted that the deceased was a self employed person working
as a black smith. I will assess the earning of a black smith in
the year 2009 when the accident took place to be Rs.5,000/- per
month. In fact, the minimum wages of a skilled worker at that
time were Rs.4,377/- per month. Wife of deceased Banwari Lal
had already expired. Considering the number of dependants as
three and taking the age of the deceased as per the post mortem
examination to be 60 years, the loss of dependency would come
to Rs.3,60,000/-(Rs.5,000/- x 12 x 2/3 x 9).
9. As far as award of non-pecuniary damages is concerned,
Respondents no.1 to 3 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.
10. The overall compensation thus, comes to Rs.4,95,000/-.
COUNSEL'S FEE
11. As far as award of counsel's fee and out of pocket expenses is
concerned, the matter was dealt with by this Court in ICICI
Lombard General Insurance Co. Ltd. v. Kanti Devi and Ors.
MAC APP No. 645/ 2012 decided on 30.07.2012. This Court
had gone into the question of granting counsel's fee and
concluded in Para 32 as under:
"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.''
12. It was thus, concluded that instead of awarding counsel's fee,
the claim petition ought to be allowed with costs and counsel's
fee be paid only in accordance with Rules 1, 1A and 9 of
Chapter 16 Vol. I of the Delhi High Court Rules and Orders.
13. The compensation awarded by the Claims Tribunal to
Respondents no.1 to 3 including the counsel's fee and out of
pocket expenses was Rs.5,04,580/-. The impugned award is
modified to the extent that Respondents no.1 to 3 would be
entitled to an overall compensation of Rs.4,95,000/-.
14. By an order dated 27.07.2012, the Appellant was directed to
deposit 75% of the award amount less counsel's fee. The
balance compensation along with interest @ 9% per annum as
awarded by the Claims Tribunal shall be deposited by the
Appellant Insurance Company within six weeks
15. The appeal is disposed of in above terms.
16. Statutory amount, if any, deposited shall be refunded to the
Appellant Insurance Company.
CM.APPL.4810/2015 (for release of amount)
17. The application has been moved for pre-matured withdrawal of
the awarded amount on account of wedding of Rahul,
Respondent no.3, one of the sons of deceased Banwari Lal.
18. Respondents no.1 to 3 shall appear before the court on
24.03.2015.
(G.P. MITTAL)
JUDGE
MARCH 18, 2015
pst
