Delhi High Court
National Insurance Co. Ltd. vs Suman Sharma & Ors. on 28 November, 2017
$~R-579-580 (common order)
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 28th November, 2017
+ MAC.APP. 925/2012
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
SUMAN SHARMA & ORS. ..... Respondents
Through: Mr. S.N. Parashar, Advocate
+ MAC.APP. 540/2013
SMT. SUMAN SHARMA & ORS. ..... Appellants
Through: Mr. S.N. Parashar, Advocate
Versus
NATIONAL INSURANCE CO. LTD. ...... Respondent
Through: Mr. Pankaj Seth, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Ram Kishan Sharma, then aged 42 years, an employee of Delhi
Jal Board, working as Assistant Pump Driver, suffered injuries in a
motor vehicular accident that occurred on 05.10.2010 and died in the
consequence. At the time of the accident, he was riding a motorcycle
bearing registration No.DL-13SC-8689 (the motorcycle). His wife and
five other family members dependent on him (collectively, the
claimants) instituted accident claim case (MACT No.55/2011) on
28.01.2011 seeking compensation on the averments that the accident
had been caused due to negligent driving of car bearing registration
No.DL-1CC-5183 (the car) by Kishan Kumar, a respondent in these
appeals. The tribunal accepted the said case on the basis of evidence
led before it and, by judgment dated 19.03.2012, held the said car
driver responsible. Since the car is registered in the name of Mukesh
Kumar, other respondent in the appeals and was admittedly insured
against third party risk for the period in question with National
Insurance Company Limited (the insurer), the liability to pay the
compensation determined in the sum of Rs.28,01,016/- was fastened
eventually on the insurer, though deduction being made to the extent
of ten per cent (10%) on the ground of contributory negligence, the
element of interest @ 7.5% per annum having been added.
2. The insurer by its appeal (MAC APP.925/2012) has questioned
the calculation reached by the tribunal on the issue of involvement of
the car on one hand and negligence on the part of its driver on the
other. It also argues, in the alternative, that if the evidence led were to
be accepted, the contributory negligence should have been to the
extent of 50%. It further submits that the loss of dependency
calculated was erroneous as no deduction on account of income tax
liability was made.
3. Per contra, the claimants, by their appeal (MAC
APP.540/2013), submit that the loss of dependency was not correctly
calculated as certain allowances which were regular in nature have
been wrongly kept out. The claimants also argue that the rate of
interest levied is inadequate.
4. Having heard the learned counsel on both sides and having gone
through the record of inquiry before the tribunal, this court finds no
substance in the argument of the insurer on the question of proof of
negligence. The evidence of Dharam Vir Singh (PW-2) has virtually
gone unimpeached, there being no effort made on the part of any of
the contesting parties to call the driver of the car in the witness box to
depose facts to the contrary. It is clear from the evidence of PW-2 that
the car had overtaken the motorcycle at a high speed, this eventually
resulting in the collision.
5. It appears that deceased had consumed alcohol as there was
smell of alcohol from his nostrils after the accident had occurred. It is
this fact which has resulted in the finding on the issue of contributory
negligence. In the opinion of this court, the assessment of the tribunal
was appropriate and would not call for any interference.
6. The claimants had proved that the deceased was earning
Rs.18,921/- as salary from Delhi Jal Board. The tribunal has made
deduction of conveyance allowance, washing allowance and transport
allowance. This was not correct as such allowances were regular and
would result in corresponding savings for the family. In these
circumstances, the loss of dependency is recalculated as (18,921/- x
130/100 x 3/4 x 12 x 14) Rs.30,99,259.80 rounded off to
Rs.31,00,000/-.
7. It is noted that non pecuniary damages need to be modified so
as to bring them in accord with the dispensation of the Constitution
Bench of the Supreme Court rendered on 31.10.2017 in SLP (C)
25590/2014, National Insurance Company Ltd. Vs. Pranay Sethi and
Ors. Hence, awards under the non pecuniary damages are enhanced
and a sum of Rs.40,000/- towards loss of consortium and Rs.15,000/-
each towards loss to estate and funeral expenses are added. Thus, the
total compensation comes to (31,00,000/- + 40,000/- + 15,000/- +
15,000/-) Rs.31,70,000/-.
8. Making a deduction of ten per cent (10%) on account of
contributory negligence, it is directed that the claimants will be
entitled to receive in total (31,70,000/- x 90/100) Rs.28,53,000/-
(Rupees Twenty Eight Lacs and Fifty Three Thousand Only).
9. Following the consistent view taken by this Court, the rate of
interest is increased to 9% per annum from the date of filing of the
petition till realization. [see judgment dated 22.02.2016 in MAC.APP.
165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi & Ors.].
10. By order dated 31.08.2016 passed in MAC APP.925/2012, the
insurance company had been directed to deposit the entire awarded
amount. The registry shall now calculate the amount payable to the
claimants. Since the award has been enhanced, the entire deposit
made with accrued interest shall be released to the claimants in terms
of the judgment of the tribunal. For the balance, the insurance
company is directed to deposit the same with the tribunal within thirty
days.
11. The statutory deposit shall be refunded to the insurer after proof
is shown of compliance.
12. Both the appeals stand disposed of in above terms.
13. Pending applications also stand disposed of.
R.K.GAUBA, J.
NOVEMBER 28, 2017
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