Delhi High Court
Inder Kumar Jha & Anr vs National Insurance Co Ltd & Ors on 24 October, 2017
$~5 & 6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 24th October, 2017
+ MAC.APP. 1034/2016 and CM 45291/2016 & 22943/2017
NATIONAL INSURANCE CO LTD ..... Appellant
Through: Mr. Arihant Jain for Ms. Shantha
Devi Raman, Advocate
versus
INDER KUMAR JHA & ORS ..... Respondents
Through: Mr. Navneet Goyal, Adv. for R-1
&2
Mr. Prashant Kumar for Mr. M.M. Singh,
Adv. for R-3 & 4
+ MAC.APP. 571/2017
INDER KUMAR JHA & ANR ..... Appellants
Through: Mr. Navneet Goyal, Advocate
versus
NATIONAL INSURANCE CO LTD & ORS ..... Respondents
Through: Mr. Arihant Jain for Ms. Shantha
Devi Raman, Advocate for R-1
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
MACA NOs.1034/16 & 571/2017 Page 1 of 6
JUDGMENT (ORAL)
1. Pinki Jha, an unmarried girl, aged 19 years, then pursuing the
course leading to the degree of Bachelor of Dental Surgery (BDS) in
the first year, suffered injuries in a motor vehicular accident that
occurred on 28.10.2014 and died in the consequence. Her parents
(appellants in MACA 571/2017) instituted accident claim case (suit
no.5551/2016) on 23.01.2015 impleading National Insurance
Company Ltd. (appellant in MACA 1034/2016) as one of the party
respondents on the averments that the accident had occurred due to the
negligent driving of a motor vehicle described as Gramin Seva bearing
registration no.DL-2W-2194 (Gramin Seva) , its driver and owner also
being added to the fray as respondents, they being respondents in these
appeals. The case was contested with the driver and owner of the
vehicle (Gramin Seva) denying that their vehicle was involved in any
such accident.
2. On the basis of evidence led during inquiry, the Motor Accident
Claims Tribunal (Tribunal), by its judgment dated 13.10.2016,
however, upheld the case of the claimants (appellants in MACA
571/2017) holding the driver of the Gramin Seva to be responsible for
negligent driving, causing fatal injuries to the victim / Pinki Jha. The
tribunal awarded compensation in the sum of Rs.18,05,000/- it
inclusive of Rs.16,80,000/- described as compensation on account of
loss of estate, adding Rs.1,00,000/- towards loss of love and affection
and Rs.25,000/- towards funeral expenses. The liability to pay was
fastened against the insurer with interest at the rate of 9% p.a.
3. Both the insurer and the claimants are in appeal, the former
questioning the finding returned about the involvement of the vehicle
as also the computation of compensation and the latter seeking
enhancement on the ground that the income of the deceased should
have been assessed to the extent of Rs.25,000/-, placing reliance on
the decision in Ashvinbhai Jayantilal Modi Vs. Ramkaran
Ramchandra Sharma and Anr., 2014 ACJ 2648.
4. Having heard the learned counsel on both sides and having
perused the record of the inquiry before the tribunal, this court finds
no substance in the appeal of the insurance company questioning the
correctness of the finding on the issue of involvement of Gramin Seva
or negligence on the part of its driver. It may be that Ashok Kumar
(PW-2) was a witness whose presence at the scene was not
immediately recorded in the police investigation. But then, the police
was able to track him down as an eye witness and the investigation
into the corresponding FIR has been completed with the aid and
assistance of his evidence. The evidence clearly brings out the fact
that the deceased while waiting for a cycle rickshaw on the roadside
was hit by Gramin Seva, involvement of a vehicle of which nature was
mentioned in the first very input received by the police immediately
after the occurrence. No undue benefit can be allowed to be taken by
the driver or the owner or for that matter the insurer of such vehicle
only because the vehicle had fled away from the scene. The finding
returned by the tribunal reached on the principle of preponderance of
probabilities, thus, does not call for any interference.
5. The tribunal should have granted compensation under the head
of loss of dependency rather than under the label of "loss of estate".
Be that as it may, it has indeed committed an error by deducting one-
third on account of personal and living expenses from the notional
income of the deceased. As is the normal rule, per the ruling in Sarla
Verma & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC
121, in case of a bachelor, 50% should have been deducted. Since the
claim was on account of death of a bachelor by the parents, the
multiplier should have been chosen according to the age of the mother
(38 years old) in which view the correct multiplier would be 15 rather
than 14 as applied by the tribunal.
6. The crucial question, however, is as to whether the notional
income of Rs.15,000/- p.m. adopted by the tribunal is correct or not.
While the claimants rely on Ashvinbhai Jayantilal Modi (supra),
reliance by the insurer is on another decision of the Supreme Court
reported as Radhakrishna and Anr. Vs. Gokul and Ors., (2013) 16
SCC 585, where following an earlier ruling of the Supreme Court in
Arvind Kumar Mishra Vs. New India Assurance Co. Ltd. & Anr.,
(2010) 10 SCC 254 in a case of death of a person of same age (19
years) also pursuing a professional degree course (engineering), the
Supreme Court granted lumpsum compensation of Rs.7 Lakhs only.
7. It has to be borne in mind that the deceased was still a student.
She had just joined the degree course leading to the qualification of
BDS which, upon completion, would undoubtedly have opened for
her avenues to earn decent livelihood. But then, such calculations are
always based on some amount of speculation. The tribunal has noted
that the minimum wages payable to a graduate at the relevant point of
time were in the sum of Rs.11,414/-. It assumed the income of
Rs.15,000/- p.m. notionally. In the given facts and circumstances,
where the deceased had just joined the course of BDS, the view taken
by the tribunal cannot be faulted. However, the errors noted earlier
need to be corrected and the deficiency in the awards under the other
heads of damages i.e. - Rs.1,00,000/- towards loss of love and
affection and Rs.25,000/- towards funeral expenses, needs to be
suitably made good.
8. On the notional income of Rs.15,000/-, making a deduction of
50% towards personal and living expenses and applying the multiplier
of 15, the loss of dependency is recomputed as [Rs.15,000 / 2 x 12 x
15] Rs.13,50,000/- (Rupees Thirteen Lakh and fifty thousand only).
Following the ruling of this court in Shriram General Insurance Co
Ltd v. Usha, MAC.APP.No.160/2015, award of Rs.1,50,000/- towards
loss of love and affection and Rs.50,000/- each towards loss of estate
and funeral expenses are added.
9. Thus, the total compensation in the case comes to
[Rs.13,50,000/- + Rs.1,50,000/- + Rs.50,000/- + Rs.50,000/-]
Rs.16,00,000/- (Rupees Sixteen Lakh only). The award is modified
accordingly. It shall carry interest as levied by the tribunal.
10. By order dated 21.12.2016 in MACA 1034/2016, the insurance
company had been directed to deposit the entire awarded amount with
interest with the tribunal and by order dated 23.05.2017, 50% of such
deposit was permitted to be released to the claimants. The tribunal
shall now calculate the balance payable to the claimants in terms of
the modified award and release the same accordingly. The excess in
deposit with statutory deposit made by the insurance company shall be
refunded.
11. Both appeals and the pending applications are disposed of in
above terms.
R.K.GAUBA, J.
OCTOBER 24, 2017
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