Delhi High Court
Sunil Kumar & Anr. vs Taj Mohmad & Ors. on 5 May, 2015
$~8 & 12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 05th May, 2015
+ MAC.APP. 181/2013
BAJAJ ALLIANZ INSURANCE COMPANY LTD.
..... Appellant
Through Ms.Neerja Sachdeva, Advocate
versus
SUNIL KUMAR & ORS.
..... Respondents
Through Ms. Niti Jain, Advocate for Mr. Anuj
Aggarwal, Advocate for Respondents
no.1 & 2.
Mr. Shantanu Bhardwaj, Advocate for
Respondent no.3.
+ MAC.APP. 366/2013
SUNIL KUMAR & ANR.
..... Appellants
Through Ms. Niti Jain, Advocate for Mr. Anuj
Aggarwal, Advocate
versus
TAJ MOHMAD & ORS.
..... Respondents
Through Ms.Neerja Sachdeva, Advocate for
Respondent no.3.
Mr. Shantanu Bhardwaj, Advocate for
Respondent no.4.
MAC. APP. Nos. 181/2013 & 366/2013 Page 1 of 8
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
G. P. MITTAL, J. (ORAL)
1. These two appeals arise out of the judgment dated 16.11.2012 passed
by the Motor Accident Claims Tribunal (the Claims Tribunal)
whereby compensation of Rs.9,24,300/- was awarded for the death of
Phoolwati who suffered fatal injuries in a motor vehicular accident
which occurred on 22.05.2008.
2. For the sake of convenience, Appellant in MAC.APP.181/2013 shall
be referred to as the Insurance Company, whereas the Appellants in
MAC.APP. 366/2013 and Smt. Saroj, who is one of the Claimants
shall be referred to as the Claimants.
3. On appreciation of evidence, the Claims Tribunal found that the
accident was caused on account of rash and negligent driving of the
two-wheeler bearing registration no.DL-3S-AR-2813 by Respondent
Taj Mohmad. The Claims Tribunal accepted the deceased's income to
be Rs.13,993/- per month, deducted a sum of Rs.672/- received by the
deceased towards Travel Allowance(TA), deducted 50% towards
personal and living expenses of the deceased as his children were
grown up although there was a widowed daughter-in-law. The Claims
Tribunal adopted a multiplier of 11 to compute the loss of dependency
on the age of the deceased which was 53 years (as per the postmortem
report) as Rs.8,79,300/-. The Claims Tribunal further awarded a sum
of Rs.25,000/- towards loss of love and affection and Rs.10,000/- each
towards funeral expenses and loss to estate. With regard to the
liability, the Claims Tribunal found that the insured committed willflul
and conscious breach of the terms and conditions of the insurance
policy. Consequently, while making the Insurance Company liable to
pay the compensation permitted it to recover the compensation paid
from the insured.
4. The finding with regard to recovery rights has not been challenged by
Mohd Sagir, the insured hence, the same has attained finality.
5. The following contentions are raised on behalf of the Insurance
Company:
(i) Since the Insurance Company proved willful and conscious
breach on the part of the insured, it ought to have been
exonerated of its liability to pay the compensation; and
(ii) The compensation awarded is on the higher side as the age of
the deceased was taken 53 years, whereas the age of the
daughter-in-law of the deceased as per the Voter Identity Card
was 50 years.
6. Per contra, the learned counsel for the Claimants urges that the
compensation awarded towards non-pecuniary damages is on the
lower side.
7. The learned counsel for the Claimant Smt. Saroj, who was awarded
large portion of the compensation, submits that the Claimant was not
averse to equal distribution of the compensation awarded, however,
Claimant Sunil Kumar being nominee of the deceased has withdrawn
the entire gratuity and group insurance from the Municipal
Corporation of Delhi(MCD) and therefore, Claimant Smt. Saroj is
entitled to greater share in the amount awarded.
8. It is not in dispute that deceased Phoolwati was employed as a
Sweeper in MCD. Her age of superannuation on the date of accident
was 60 years. Of course, the age of Smt. Saroj who is the daughter-in-
law of deceased Phoolwati as per the Voter Identity Card issued by
Election Commission of India would come to 50 years, however, the
learned counsel for the Claimant Smt. Saroj states that as per the
information received by him Saroj's age was disclosed by her Late
husband at the time of issuance of the Voter Identity Card and there
may be possibility of the same being recorded wrongly. In any case,
as already stated above, deceased Phoolwati was in Government
Service. Even considering the age of superannuation to be 60 years,
the multiplier taken will be 9. So, in the absence of any evidence with
regard to the same being produced by the parties, I am inclined to
accept the age of the deceased to be 53 years as per the postmortem
examination. The Claims Tribunal had made a deduction of 50%
towards personal and living expenses of the deceased as her legal
representatives were major. Although, no evidence was led to prove
that the grand-children of deceased Phoolwati i.e. children of
predeceased son Mam Chand were dependant but while apportioning
the compensation amongst the legal heirs of the deceased, the Claims
Tribunal awarded larger part of the compensation to Smt. Saroj, the
widowed daughter-in-law primarily on the ground that the deceased
had the responsibility of her grand children. The learned counsel for
the Claimant Smt. Saroj fairly concedes that no evidence was led in
this regard. The fact, however, remains that the deceased was
survived by the children of her predeceased son Mam Chand.
Normally, when there is no financial dependency of the legal
representatives, only 1/3rd of the deceased's income is to be awarded
towards loss to estate. (See Keith Rowe v. Prashant Sagar & Ors.,
MAC APP. No.601/2007 decided on 15.01.2001 and the judgment of
Karnataka High Court in A. Manavalagan v. A. Krishnamurthy &
Ors., 2005 ACJ 1992). In the facts of this case, the Claims Tribunal
rightly took half of the deceased's income towards loss of
dependency. The loss of dependency was rightly taken as
Rs.8,79,300/- by the Claims Tribunal.
9. As far as award of compensation towards non-pecuniary damages is
concerned, the husband of Phoolwati had predeceased her. In view of
the judgment in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC
54, the legal representatives of the deceased will be 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 compensation is therefore, enhanced by Rs.90,000/- which shall
carry interest @ 7.5% per annum from the date of filing the claim
petition till its payment.
11. The Insurance Company is directed to deposit the enhanced
compensation with UCO Bank, Delhi High Court Branch, New Delhi
within six weeks.
12. As stated earlier, the Claims Tribunal granted recovery rights to the
Insurance Company. That finding has attained finality as far as
insured is concerned. It goes without saying that the Insurance
Company will be entitled to recover the compensation paid from the
insured in execution of this very judgment without having recourse to
independent recovery proceedings.
APPORTIONMENT:
13. As far as apportionment of the compensation award is concerned, the
Claims Tribunal awarded major part of the compensation to Claimant
Smt. Saroj on the ground that the deceased was survived by major
sons, a widowed daughter-in-law and the children of the predeceased
son. No evidence was led to prove that the children of the
predeceased son (grand-children) were solely dependent on the
deceased. At the same time, I have observed earlier that the deceased
was survived by minor grand-children.
14. In view of this, 50% of the awarded compensation along with
proportionate interest shall be payable to Claimant Smt. Saroj, which
shall be used by her for herself and for the benefit of her children i.e.
grand-children of deceased Phoolwati. 25% of the compensation each
shall be payable to Claimants Sunil Kumar and Surinder Singh.
15. Both the appeals are disposed of in above terms.
16. Pending applications, if any, also stand disposed of.
17. Statutory amount, if any, deposited shall be refunded to the Insurance
Company on deposit of the enhanced compensation and filing a
certificate in this regard.
(G.P. MITTAL)
JUDGE
MAY 05, 2015
pst
