Delhi High Court
Kamlesh & Ors vs Rahul Dhingra & Ors. on 25 July, 2017
$~R-92
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 25th July, 2017
+ MAC.APP. 420/2009 and CM APPL.12246/2009
KAMLESH & ORS. ..... Appellants
Through: Nemo.
versus
RAHUL DHINGRA & ORS. ..... Respondents
Through: Ms. Nanita Sharma Advocate
for R-3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Mr. Chaman Lal, then aged 41 years old, died as a result of the
injuries suffered in a motor vehicular accident that occurred on
28.02.2007, statedly due to negligent driving of Maruti Esteem car
bearing registration no.DL-3CF-2128, admittedly insured against third
party risk with the third respondent for the period in question. His
wife and son (the appellants) instituted accident claim petition
(Petition No.290/2007) on 07.07.2007 seeking compensation. The
Motor Accident Claims Tribunal (the Tribunal) after inquiry, by
judgment dated 10.02.2009, accepted the claim on the principle of
fault liability, the findings returned in which regard have attained
finality. By the impugned judgment, the tribunal awarded
compensation in the total sum of Rs.6,17,600/- with interest @ 9% per
annum in their favour directing the insurance company to pay. This
amount of compensation was inclusive of Rs.5,07,600/- calculated
towards loss of dependency, besides Rs.50,000/- each towards loss of
consortium and loss of love and affection and Rs.10,000/- towards
funeral expenses.
2. The present appeal was filed in August, 2009 seeking
enhancement. Since the liability to indemnify was admitted by the
insurance company, notice was issued restricted to the said party only.
3. The appeal was admitted and put in the category of 'REGULAR
MATTERS' by order dated 05.04.2010. It was earlier referred to Lok
Adalat where it could not be amicably settled. When the appeal was
called out last on 27.01.2011, there was no appearance on the side of
the appellants. Same is the position today. This appeal, being one of
the oldest on board of this Court, ought not be adjourned yet again.
4. Having heard the learned counsel for the insurance company
and having gone through the tribunal's record, this Court finds no
substance in the contentions urged in the appeal that the evidence of
the claimants about earnings from private entity named U.K.
Enterprises, located at C-3/32, Dayalpur Extension New Delhi, as
adduced through evidence of Surender Singh (PW-3), should have
been believed. The tribunal has given good and sound reasons to reject
the testimony based on vouchers (Ex.PW-3/1 to Ex.PW-3/10). The
said vouchers are stand-alone record with nothing reflected in the
account books of the firm where the deceased is stated to have been
employed on daily basis. PW-3 admitted, during his cross-
examination, that no copies of the vouchers were maintained nor any
serial number given to them, there being nothing in the muster roll
register, or wage register of the firm, regarding employment of the
deceased. In above facts and circumstances, the tribunal correctly
adopted the minimum wages as a bench mark to assess the loss of
dependency.
5. At the same time, however, it is noticed that the award under
the non-pecuniary heads of damages is inadequate. Following the
view taken in Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54
and Shashikala vs. Gangalakshmamma (2015) 9 SCC 150,
compensation in the sum of Rs.1 lakh each on account of loss of love
& affection and loss of consortium and Rs.25,000/- each towards loss
of estate and funeral expense are granted. This would mean, there
would be a net increase of (Rs.2,50,000/- minus Rs.1,10,000/-)
Rs.1,40,000/- only.
6. Ordered accordingly. The enhanced portion of the award shall
also carry interest @ 9% per annum from the date of filing of the
petition till realization. Having regard to the facts and circumstances
of the case, the entire enhanced portion of the award with
corresponding interest shall be paid to the first appellant (widow).
7. The enhanced portion of the award along with interest in terms
of the above modification shall be deposited by the third respondent
(insurance company) with the tribunal within thirty days, whereupon
the tribunal shall issue a notice to the claimant, releasing the same in
her favour in the form of fixed deposit receipt taken out in a
nationalized bank for a period of four years.
8. The appeal is disposed of in above terms.
9. Dasti.
R.K.GAUBA, J.
JULY 25, 2017
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