Delhi High Court
The Oriental Insurance Company ... vs Mohd. Idrish And Others on 27 May, 2015
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 27th May, 2015
+ MAC. APP. 159/ 2014
THE ORIENTAL INSURANCE COMPANY LTD.
...... Appellant
Through: Mr. J.P.N. Shahi, Advocate
Versus
MOHD. IDRISH AND OTHERS ..... Respondents
Through: Mr. N.K. Jha, Advocate for
Respondents no.1 & 2.
Mr. G.S. Sharma, Advocate for
Respondents no.3 and 4.
CORAM:
HON'BLE MR. JUSTICE G.P. MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellant Oriental Insurance Company Limited has filed the
present appeal against the judgment dated 30.11.2013 passed by
the Motor Accident Claims Tribunal (the Claims Tribunal)
whereby compensation of `6,22,248/- was awarded in favour of
Respondents no.1 and 2 for the death of their bachelor son Late
Shri Mohd. Mustafa @ Mustaq, who suffered fatal injuries in a
motor vehicular accident which occurred on 23.07.2007.
2. On appreciation of evidence, the Claims Tribunal found that the
accident was caused on account of rash and negligent driving of the
Tempo TATA 407 bearing Registration no.DL-1L-A-7129 by its
driver Respondent no.3. Further, the Claims Tribunal took
minimum wages of an unskilled worker on the date of the accident,
added 50% towards future prospects, deducted 1/2 towards
personal and living expenses and applied the multiplier of 18 (as
per the age of the deceased) to compute the loss of dependency at
`5,62,248/-.
3. In addition, the Claims Tribunal awarded `25,000/- towards
funeral expenses, `10,000/- towards loss to estate and `25,000/-
towards loss of love and affection to compute the overall
compensation of `6,22,248/-. The same was to be paid by the
Appellant Insurance Company and it was granted the right to
recover the amount paid from Respondent no.4 (insured) as
Respondent no.3's Driving License was found to be fake and
Respondent no.4 had failed to enter the witness box and explain the
circumstances under which he had employed Respondent no.3.
4. The following contentions are raised by the learned counsel for the
Appellant Insurance Company:-
(i) Addition of 50% was wrongly made towards future
prospects though there was no evidence with regard to
permanent employment or good future prospects of the
deceased;
(ii) The Claims Tribunal has erroneously adopted the multiplier
of 18 as per the age of the deceased though the multiplier
should be adopted as per the age of the mother of the
deceased as the deceased was a bachelor; and
(iii) Award under non-pecuniary heads is made on higher side.
5. In the absence of any challenge to the finding of negligence, the
same has attained finality.
6. With regard to the amount of compensation to be granted, PW1
Shri Mohd. Idrish, father of the deceased testified that his son was
a non-matriculate and was employed as a helper with Respondent
no.4 on TATA 407 bearing Registration no.DL-1L-A-7129 earning
`4,500/- per month. Similarly, PW2 Shri Mohd. Anwar Ali, uncle
of the deceased (with whom the deceased resided) and eye witness
to the accident deposed that his deceased nephew was employed
with Respondent no.4 and was earning `4,500/- per month.
However, both the witnesses admitted that they have no document
to prove the alleged income of the deceased.
7. Thus, in the absence of any documentary proof with regard to the
deceased's employment or income, I am inclined to take minimum
wages of an unskilled worker at the time of the accident i.e.
`3,470/- per month as the income of the deceased as taken by the
Claims Tribunal.
8. Since the deceased was neither in permanent employment, nor is
there any evidence available with regard to the deceased's good
future prospects except the bald testimony of his father that the
deceased had a bright future and he would have earned at least
`9,000/- per month at the top of his career had he not died in the
accident, no addition ought to have been made towards future
prospects. (See HDFC Ergo General Insurance Co. Ltd. v. Smt.
Lalta Devi and Ors. MAC APP No. 189/2014 decided on
12.01.2015).
9. Further, as the deceased was a bachelor at the time of his accident
and death, the Claims Tribunal rightly made a deduction of 1/2
towards personal and living expenses in view of Smt. Sarla Verma
and Ors. v. Delhi Transport Corporation and Anr., (2009) 6 SCC
121.
10. Moreover, the question of selection of multiplier in case of death of
a bachelor was dealt by me at great length in Shriram General
Insurance Co. Ltd. v. Maneesha Karnatak and Others, MAC. APP.
No. 655 of 2014 decided on 20.03.2015 wherein relying upon the
three Judge bench decisions of the Hon'ble Supreme Court in U.P.
SRTC v. Trilok Chandra, (1996) 4 SCC 362 and New India
Assurance Company Limited v. Shanti Pathak (Smt.) and Ors.,
(2007) 10 SCC 1, it was held that the multiplier in case of a
bachelor will be as per the age of the deceased or the Claimant
whichever is higher.
11. In the present case, the age of the deceased's mother on the date of
the accident was 38 years as per her Election Identity Card
(Ex.PW1/1). Consequently, the appropriate multiplier will be 15
rather than 18 as taken by the Claims Tribunal.
12. The loss of dependency would hence, come to `3,12,300/- (3,470/-
x 12 x 1/2 x 15). Adding `1,35,000/- towards non-pecuniary
damages i.e. `1,00,000/- towards loss of love and affection,
`25,000/- towards funeral expenses and `10,000/- towards loss to
estate in view of the three Judge bench decision of the Supreme
Court in Rajesh and Others v. Rajbir Singh and Others, (2013) 9
SCC 54, the overall compensation would come to `4,47,300/-.
13. However, an important question which falls for consideration in
the instant appeal is whether the compensation awarded to the
Claimants under Section 166 of the Motor Vehicles Act, 1988 (the
Act) can be less than the one permissible under Section 163A of
the Act. Admittedly, the victim or the legal representatives of the
deceased are entitled to compensation under Section 163A of the
Act without proving any negligence on the part of the driver of the
offending vehicle involved in the accident. On the other hand, this
was a petition under Section 166 of the Act where negligence is
required to be proved on the touchstone of preponderance of
probability.
14. It is well settled by a catena of judgments that Section 166 of the
Act envisages payment of compensation which is just and
reasonable. In this connection, a reference may be made to the
report of the Supreme Court in State of Haryana v. Jasbir Kaur,
(2003) 7 SCC 484, wherein while highlighting the payment of just
compensation, the Supreme Court held as under:-
"7. It has to be kept in view that the Tribunal
constituted under the Act as provided in Section 168
is required to make an award determining the amount
of compensation which is to be in the real sense
„damages‟ which in turn appears to it to be „just and
reasonable‟. It has to be borne in mind that
compensation for loss of limbs or life can hardly be
weighed in golden scales. But at the same time it has
to be borne in mind that the compensation is not
expected to be a windfall for the victim. Statutory
provisions clearly indicate that the compensation
must be „just and it cannot be a bonanza; not a source
of profit; but the same should not be a pittance.‟ The
courts and tribunals have a duty to weigh the various
factors and quantify the amount of compensation,
which should be just. What would be „just‟
compensation is a vexed question. There can be no
golden rule applicable to all cases for measuring the
value of human life or a limb. Measure of damages
cannot be arrived at by precise mathematical
calculations. It would depend upon the particular
facts and circumstances, and attending peculiar or
special features, if any. Every method or mode
adopted for assessing compensation has to be
considered in the background of „just‟ compensation
which is the pivotal consideration. Though by use of
the expression „which appears to it to be just‟ a wide
discretion is vested in the Tribunal, the determination
has to be rational, to be done by a judicious approach
and not the outcome of whims, wild guesses and
arbitrariness. The expression „just‟ denotes
equitability, fairness and reasonableness, and non-
arbitrary. If it is not so it cannot be just."
15. Thus, in my view, the compensation payable to a victim of a motor
vehicular accident or to the legal representatives of the deceased
who suffered fatal injuries in a motor vehicular accident under
Section 166 of the Act cannot be less than one payable under
Section 163A of the Act.
16. If I take the income of the deceased as `40,000/- per annum which
is the maximum provided under Schedule II of the Act for a
petition under Section 163A of the Act (and less than the minimum
wages), the loss of dependency on a multiplier of 18 (the deceased
being 18 years of age on the date of the accident as his date of birth
as per his School Leaving Certificate/Transfer Certificate
(Ex.PW1/2) was 02.01.1989) will come to `4,80,000/- (40,000/- x
2/3 x 18).
17. In addition, in a petition under Section 163A of the Act, the
Claimants are entitled to a sum of `2,000/- towards funeral
expenses and `2,500/- towards loss to estate as per the Second
Schedule of the Act. The overall compensation hence, will come to
`4,84,500/-.
18. Since this compensation is payable without proving negligence as
per the structured formula, compensation payable under Section
166 of the Act cannot be less than the compensation of `4,84,500/-.
19. The compensation is accordingly reduced from `6,22,248/- to
`4,84,500/-.
20. By an order dated 17.02.2014, execution of the award was stayed
on deposit of the entire awarded amount along with up-to-date
interest accrued thereon by the Appellant and 70% of the same was
ordered to be released to Respondents no.1 and 2.
21. The remaining compensation shall also be released to Respondents
no.1 and 2 alongwith proportionate interest. The excess amount
along with residue interest shall be refunded to the Appellant
Insurance Company.
22. It may be noted that the Appellant Insurance Company proved the
breach of the terms and conditions of the Insurance Policy and was
therefore granted recovery rights to recover the compensation paid
from Respondent no.4 (insured). The said finding has not been
challenged by Respondent no.4.
23. It is therefore, directed that the Appellant Insurance Company shall
be entitled to recover the compensation amount paid by it in
execution of this very judgment without having recourse to
independent civil proceedings from Respondent no.4.
24. The appeal is disposed of in above terms.
25. Pending applications, if any, also stand disposed of.
26. Statutory amount, if any, deposited shall be refunded to the
Appellant Insurance Company.
(G.P. MITTAL)
JUDGE
MAY 27, 2015
sj
