Delhi High Court
National Insurance Co. Ltd. vs Anita Devi & Ors. on 2 February, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: February 02, 2017
+ MAC. APP.416/2009
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. A.K. Soni, Advocate
Versus
ANITA DEVI & ORS. .....Respondents
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% ORAL
1. Impugned Award of 19th March, 2009, grants compensation of
`7,50,000/- with interest @7% p.a. to respondents-claimants on account
of death of one Kamlesh, aged about 27 years, in a road accident on 12th
November, 2004. The factual matrix of this case already stands noticed
in the opening paragraph of impugned Award and so, needs no
reproduction. Suffice to note that deceased was working as Conductor on
a private bus and was earning of `3,000/- p.m. and he has left behind
seven legal heirs i.e. his parents, widow and four minor children. Driver
and owner of the bus in question have not contested the claim petition
before the learned Motor Accident Claims Tribunal. The breakup of the
compensation as granted by learned Tribunal is as under: -
1. Loss of Dependency `7,05,000/-
2. Loss of Love & `35,000/-
Affection
3. Funeral Expenses `5,000/-
4. Loss of Estate `5,000/-
Total `7,50,000/-
2. In this appeal, respondents-owner and driver of the bus in question
have chosen not to contest and respondents-claimants were initially
represented by counsel. Mr. A. K. Soni, Advocate, for appellant-Insurer
submits that he had telephonically informed Mr. R.S. Mishra, Advocate,
for the claimants about pendency of this appeal but still there is no
representation on their behalf. With the assistance of Mr. A. K. Soni,
Advocate, for appellant-Insurer, evidence on record and impugned Award
has been perused.
3. The precise stand of learned counsel for appellant-Insurer is that
the quantum of compensation awarded by learned Motor Accident Claims
Tribunal is not in consonance with the provisions of Second Schedule
appended to the Motor Vehicles Act, 1988. It is submitted that as per
Second Schedule appended to The Motor Vehicles Act, 1988, which
governs the grant of compensation under Section 163A of the aforesaid
Act, the upper limit of annual income of the victim is `40,000/- p.a.. It is
also submitted that the compensation granted under the non-pecuniary
heads is unwarranted, as in case of death, Section 163A of the Motor
Vehicles Act, 1988 does not permit grant compensation of more than
`9,500/- under the non-pecuniary heads. To submit that compensation
granted needs to be reduced to bring it in consonance with the provisions
of Second Schedule to The Motor Vehicles Act, 1988, reliance is placed
upon a three judge Bench decision of Supreme Court in Deepal
Girishbhai Soni and Others v. United India Insurance Co. Ltd. Baroda,
(2004) 5 SCC 385. Nothing else is urged on behalf of appellant-Insurer.
4. Upon hearing and on perusal of impugned Award, evidence on
record and the decision cited, I find that Section 163-A of the Motor
Vehicles Act, 1988 provides for grant of compensation de hors the
negligence aspect and so, the compensation granted for 'loss of income' is
limited to the amount as provided in the Second Schedule of the Motor
Vehicles Act and the Second Schedule to the aforesaid Act also provides
that deductions of 1/3rd towards the personal expenses of the victim is to
be made and the general damages which ought to be granted under the
Non-Pecuniary heads are also confined to a particular limit. Since the
Second Schedule qua Section 163-A of the Motor Vehicles Act, 1988
came into force w.e.f. 14th November, 1994, therefore, while taking into
consideration the inflation aspect suitable addition to the amount
quantified in the Second Schedule is required to be made. Such a view is
being taken as it is unrealistic that 'funeral expenses' incurred would be
just `2,000/- and 'loss of estate' would be `2,500/-. 'Loss of Consortium'
as per Second Schedule in relation to Section 163-A of the Motor
Vehicles Act, 1988 of `5,000/- also is quite unrealistic.
5. In the light of above observations, the compensation of `5,000/-
towards 'funeral expenses' and of `5,000/- towards 'loss of estate' is
justified. Even, the compensation of `35,000/- granted by learned
Tribunal under the head of 'loss of love and affection' is also justified.
However, the grant of compensation of `7,05,000/- towards 'loss of
dependency' as assessed by learned Tribunal needs to be interfered with
for the reason that it grants `5,800/- per month towards 'loss of future
prospects'. Since deceased was not in permanent employment so, in view
of dictum of a three judge Bench of Supreme Court in Reshma Kumari &
Ors. v. Madan Mohan & Anr. (2013) 9 SCC 65, the addition of `5,800/-
per month towards 'future prospects' is disallowed. Accordingly, the
'loss of dependency' is reassessed while taking the income of deceased as
`3,500/- per month (as asserted in the claim petition) and after deducting
1/3rd towards personal expenses, it comes to `5,04,000/- (`3,500/- X 12 X
18 X 2/3).
6. In view of aforesaid, the compensation payable to legal heirs of
deceased is reassessed as under: -
1. Loss of Dependency `5,04,000/-
2. Loss of Love & `35,000/-
Affection
3. Funeral Expenses `5,000/-
4. Loss of Estate `5,000/-
Total `5,49,000/-
7. Thus, the compensation awarded is reduced from `7,50,000/- to
`5,04,000/-. However, the rate of interest of 7% as granted by learned
Tribunal is maintained.
8. Vide order of 17th December, 2009, it was directed that the amount
deposited by appellant-insurer be released to respondents-claimants in
form of FDRs in a graded manner. The excess amount deposited by
appellant-insurer be refunded to appellant and the reassessed
compensation as per this judgment be released to respondents-claimants.
The concerned Bank is directed to do the needful. Registry to ensure
compliance of this judgment within four weeks. The statutory deposit, if
any, made by appellant-insurer be refunded as per Rules.
9. This appeal is accordingly disposed of.
(SUNIL GAUR)
JUDGE
FEBRUARY 02, 2017
r/s
