Delhi High Court
Santosh & Ors. vs United India Ins. Co. & Anr. on 12 September, 2017
$~R-187
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 12th September, 2017
+ MAC APPEAL No. 145/2010
SANTOSH & ORS. ..... Appellants
Through: None.
Versus
UNITED INDIA INS. CO. & ANR. ..... Respondents
Through: Mr. Pankaj Seth, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Anil Kumar, then aged 34 years, a married person, suffered
injuries in a motor vehicular accident that occurred on 04.06.2001 due
to negligent driving of bus bearing registration no. DL 1PA 3571,
which was admittedly insured against third party risk for the period in
question with the first respondent (insurer). An accident claim case
was filed by him (MACT No. 668/2009) on 15.04.2002 seeking
compensation for the injuries suffered. The Tribunal's record shows
that the inquiry into the claim petition remained pending even while
the said original claimant (victim Anil Kumar) continued to be under
treatment. He eventually died on 27.06.2006 and on the basis of
applications moved, inter alia, invoking Order 6 Rule 17 and Order 22
Rule 3 of the Code of Civil Procedure, 1908 (CPC) by his parents,
now the appellants, they were allowed to take over the case, it being
treated as a case for compensation on account of death due to
negligence. It may be mentioned here that during the course of
treatment, Lalita, the wife of Anil Kumar deserted him. She entered
into an agreement with the parents described as Panchayat Faisla
(Ex.PW-1/6) in terms of which she received an amount of Rs.
5,00,000/- from the appellants and forfeited her right in the
compensation that may be awarded by the Tribunal on the then
pending claim petition.
2. The Tribunal, after inquiry, by judgment dated 11.12.2009,
awarded compensation in the sum of Rs.8,66,500/- in favour of the
appellants directing the insurer to pay with interest @ nine per cent
(9%) per annum, calculating it thus:-
S.No. Heads of compensation Amount
1. Medicine & Treatment Rs. 2,80,000/-
2. Loss of Income Rs. 46,500/-
3. Loss of Earning Power Rs. 1,15,000/-
4. Loss of Amenities Rs. 75,000/-
5. Pain & suffering Rs. 75,000/-
6. Conveyance and Special Rs. 35,000/-
Diet
7. Loss of Dependency Rs. 1,70,000/-
8. Loss of Love & affection Rs. 50,000/-
9. Funeral expenses Rs. 10,000/-
10. Loss to Estate Rs. 10,000/-
Total Rs. 8,66,500/-
(Rupees Eight Lacs
Sixty Six thousand
five hundred only.
3. It is noted that while calculating the compensation under
various heads relatable to claims maintained in fatal accident cases,
the Tribunal has taken it to be a case of bachelor's death, assuming the
multiplier on the basis of age of the claimant parents, also adding the
compensation towards the expenditure incurred on account of medical
treatment and the loss of earnings during the period the victim was
alive, such awards including damages even under the heads of loss of
amenities and pain & suffering which, technically speaking, were
personal to the original claimant, and which, under the existing
jurisprudence, would not survive.
4. The appeal was directed to be put in the regular matters as per
order dated 17.02.2011. But no one has appeared for the claimants
when it is taken up for hearing. The matter has been considered with
the assistance of the first respondent (insurance company).
5. The appeal at hand was filed raising the grievance that the
compensation awarded is inadequate, the prime contention being
raised with regard to the fact that the element of future prospects has
not been factored in and the Tribunal has not taken into account the
fact that the parents had paid an amount of Rs. 5 lakhs to the wife of
the victim who had deserted him.
6. The amount paid by the parents to the wife of the victim who
deserted him on account of helpless and hopeless state in which he
was then placed, cannot be the guiding factor. The compensation has
to be determined on the basis of settled principles of law. The
Tribunal has improperly added awards under the heads of loss of
amenities and pain & suffering which would not survive and, thus, had
to be kept out. It does appear that the victim was alive for about five
years and, therefore, the loss of earning for the corresponding period,
in the peculiar facts and circumstances, could be included in the final
dispensation. But then, the said amount (1,15,000 + 46,500 = Rs.
1,61,500/-) is falling short of loss of earnings for five years (3100 x 12
x 5 = Rs. 1,86,000/-) by only Rs. 24,500/-. This is more or less set-off
by the inclusion of (Rs. 75,000 + 35,000) Rs.1,10,000/- under the
impermissible heads of damages. The same reasoning applies to the
inadequacy under the heads of loss of estate and funeral expenses.
7. For the foregoing reasons, there is no scope for any
enhancement in the award.
8. The appeal is dismissed.
R.K.GAUBA, J.
SEPTEMBER 12,2017
nk
