Delhi High Court
M/S. Icici Lombard General ... vs Lakshmi Juneja & Ors. on 6 April, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: April 06, 2018
+ MAC.APP. 342/2015 & CM 7590/2015
M/S. ICICI LOMBARD GENERAL INSURANCE COMPANY
LTD. .....Appellant
Through: Mr. Ankit Kalra, Advocate
versus
LAKSHMI JUNEJA & ORS. .....Respondents
Through: Mr. Madhav Khosla, Advocate
Mr. Deepak Pandey, Advocate
+ MAC.APP. 359/2015
M/S. ICICI LOMBARD GENERAL INSURANCE COMPANY
LTD. .....Appellant
Through: Mr. Ankit Kalra, Advocate
versus
LAKSHMI JUNEJA & ORS. .....Respondents
Through: Mr. Deepak Pandey, Advocate
+ MAC.APP.374/2015
LAXMI JUNEJA & ORS. .....Appellants
Through: Mr. Deepak Pandey, Advocate
versus
KRISHAN PAL & ORS (ICICI LOMBARD GENERAL
INSURANCE CO LTD) .....Respondent
Through: Mr. Ankit Kalra, Advocate
+ MAC.APP. 416/2015
LAKSHMI JUNEJA .....Appellant
Through: Mr. Deepak Pandey, Advocate
versus
KRISHAN PAL & ORS (ICICI LOMBARD GENERAL
INSURANCE COMPANY LTD) ....Respondents
Through: Mr. Ankit Kalra, Advocate
MAC.APP. 342/2015& Connected matters Page 1 of 9
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. With the consent of learned counsel for the parties, the above
captioned four appeals have been heard together and are being
decided by this common order.
2. The above captioned four appeals relate to an Award of 17.1.2015
vide which compensation of ` 91,52,000/- has been granted to the
legal Heirs of Raj Mohan Singh Juneja, aged 47 years, who had
died in a vehicular accident on 12.3.2010. In this accident, Laxmi
Juneja who is one of the legal heirs of late Raj Mohan Singh Juneja
had sustained grievous injuries and the award in question grants
compensation of ` 2,48,100/- to her on account of the injuries
sustained by her in this accident. The awarded compensation
carries interest @ 9% per annum and appellant had been held liable
to pay the awarded compensation in the manner indicated in the
Award.
3. The above captioned first two appeals are by the Insurer who seeks
reduction in the quantum of compensation granted and the third
Appeal is by the legal heirs of the deceased seeking enhancement
of compensation and in the fourth appeal, the Injured wife of the
deceased, seeks enhancement of compensation granted to her on
account of injuries sustained by her in this accident.
4. The factual details already find mention in the Award and so, need
no reproduction. Suffice to note that the deceased was self-
employed and the Motor Accident Claim Tribunal (hereinafter
referred to as the „Tribunal‟), in the Award has relied upon the
evidence recorded to conclude that the liability is of appellant-
Insurer to pay the compensation. While taking the income of the
deceased to be ` 7,03,505/- and after adding 30% towards future
prospects, the loss of income has been assessed at ` 9,14,556/-.
5. While taking note that the deceased was survived by his wife, two
minor daughters and aged father, after deducting 1/4 th towards
personal expenses and by applying the multiplier of 13, the loss of
dependency has been assessed at ` 89,17,000/-. Compensation of
` 1 lac under the head of 'loss of love and affection‟ and further
compensation of ` 1 lac under the head of 'loss of consortium‟ and
` 10,000/- under the head of 'loss of estate‟ has been granted to the
legal heirs of the deceased. 'Funeral expenses‟ of `25,000/- has
also been awarded. The break-up of the compensation granted to
the legal heirs of the deceased by the Tribunal is as under :-
LOSS OF DEPENDENCY = ` 89,17,000/-
LOSS OF LOVE AND AFFECTION = ` 1,00,000/-
LOSS OF CONSORTIUM = ` 1,00,000/-
FUNERAL EXPENSES = ` 25.000/-
LOSS OF ESTATE = ` 10,000/-
TOTAL = ` 91,52,000/-
6. On the basis of the documentary evidence led by the injured -
Laxmi Juneja, medical expenses of ` 18,900/- has been granted to
her. Future expenses of ` 1 lac has been awarded to injured - Ms.
Laxmi Juneja to enable her to undergo physiotherapy, as disability
in the form of limitation to long working and walking is likely to
persist.
7. Compensation of ` 50,000/- has been granted to Injured- Ms.
Laxmi Juneja under the head of „pain and suffering and enjoyment
of life‟. A sum of ` 30,000/- has been awarded to her towards
'special diet, conveyance and attendant charges‟. On account of
the injuries sustained by Ms. Laxmi Juneja, „loss of income‟ during
the period of treatment has been assessed at ` 49,200/-. The break-
up of the compensation granted to Injured - Ms. Laxmi Juneja by
the Tribunal is as under :-
Medical Expenses : ` 18,900/-
Physiotherapy : ` 1,00,000/-
Pain, sufferings & Enjoyment of Life : `. 50,000/-
Special Diet, Attendant & Conveyance Charges : ` 30,000/-
Loss of Income : ` 49,200/-
TOTAL : ` 2,48,100/-
8. The challenge to Award of 17.1.2015 by learned counsel of Insurer
is on the ground that there was contributory negligence of deceased
in causing the accident in question to the extent of 50%. To assert
so, attention of this Court is drawn to the evidence of Kishan Pal,
who was driving the insured vehicle at the time of this accident.
According to the learned counsel for Insurer, the insured vehicle
was stationery on the side of the road and the vehicle driven by
deceased had hit against it, in the night intervening 11th and 12th
March, 2010 and so, the quantum of compensation granted needs
to be suitably reduced.
9. It is next submitted by learned counsel for Insurer that Injured-Ms.
Laxmi Juneja in her evidence has admitted that she was filing the
income tax returns, which indicates that she was earning and so,
the deduction towards personal expenses of the deceased ought to
have been 1/3rd and not 1/4th. Learned counsel for the Insurer
submits that the Tribunal has erred in not granting the recovery
rights as it is evident from the Driving Licence of driver of the
insured vehicle that he was not authorised to drive in the National
Capital Territory (NCT).
10. Regarding grant of non-pecuniary damages, it is submitted by
learned counsel for Insurer that it needs to be in tune with Supreme
Court's decision in National Insurance Co. Ltd. Vs. Pranay Sethi &
Ors. 2017 SCC OnLine SC 1270. It is also submitted by learned
counsel for Insurer that the appeals filed by the legal heirs of the
deceased and the injured ought to be out-rightly dismissed as no
case for enhancement of compensation is made out and rather, the
compensation awarded needs to be suitably reduced.
11. On the contrary, learned counsel for the driver of the insured
vehicle submits that the driving licence which was in possession of
the driver was valid as the concerned officer has not put his
signatures below the remark "Driving Licence not valid in the
NCT . To submit so, the attention of this Court is drawn to the
evidence of witness - R3W2 from the Regional Transport Officer -
Meerut.
12. Learned counsel for the Claimants submits that the material
witnesses i.e. the driver of the insured vehicle, has not been cross-
examined on the contributory negligence aspect and that the
injured was not having any steady income and she was a house-
wife and so deduction of 1/4th towards personal expenses has been
rightly weighed.
13. To seek enhancement of compensation, learned counsel for the
Claimants submits that the quantum of compensation granted is on
the lower side and needs to be suitably enhanced. According to the
learned counsel for the Claimants, the Tribunal has erred in not
taking the income of the deceased at ` 1 lac odd per month and has
erred in not taking into consideration the home loan of ` 94 lacs
odd which was repayable in monthly instalments. So, it is
submitted by claimant's counsel that the quantum of compensation
granted needs to be suitably enhanced.
14. Upon hearing both the sides and on perusal of the Award in
question, evidence on record and the decision cited, this Court
finds that the plea of contributory negligence cannot be accepted
because there is no effective cross-examination of the driver-
Kishan Pal of the insured vehicle and in the face of evidence of the
Injured. Regarding deduction of 1/3rd towards personal expenses, it
transpires from the evidence on record that the Injured was not
having any steady income and so deduction of 1/4 th towards
personal expenses has been rightly made by the Tribunal.
15. So far as the grant of recovery rights is concerned, I find that copy
of the driving licence Ex- PW-1/3 of Kishan Pal, driver of the
insured vehicle, bears a faint stamp of "driving licence not valid in
NCT of Delhi" and below that stamp, attested is written, but the
said statement of driving licence in question being not valid in
NCT has not been signed by anybody. Therefore, no case for grant
of recovery rights to the Insurer is made out.
16. Regarding the enhancement of quantum of compensation, I find
that the Tribunal has assessed the income of deceased on the basis
of the income as reflected in the Income Tax Return and rightly so,
because a bald statement of the legal heirs of deceased regarding
income of deceased being more than ` 1 lac cannot be accepted on
the face of it. So far as the liability of the legal heirs of deceased
regarding the payment of instalments of ` 97,000/- per month
towards the home loan of ` 94 lacs odd is concerned, I find that
Ms. Laxmi Juneja, wife of deceased has nowhere asserted in the
evidence that the home loan amount was paid by the deceased till
the date of accident and so, on this account, the quantum of
compensation granted cannot be enhanced.
17. As regards the grant of compensation under the non-pecuniary
heads is concerned, I find that the Tribunal has granted
compensation of ` 2,35,000/- under this head but in light of
Supreme Court decision in Pranay Sethi (Supra), it needs to be
reduced to ` 70,000/-.
18. In view of the dictum of Supreme Court in Pranay Sethi's case
(Supra), the addition towards future prospects is reduced from 30%
to 25% and the quantum of compensation under the head of „loss of
income‟ is reduced from ` 9,14,556/- to ` 8,79,381.25, which is
rounded off to ` 8,79,382/-. Applying the multiplier of 13, the 'loss
of dependency‟ is accordingly reduced from ` 89,17,000/- to `
85,73,974/-.
19. In view of the above, the compensation granted to legal heirs of the
deceased is re-assessed as under :-
Loss of dependency : `85,73,974
Loss of consortium : `40,000
Funeral expenses : `15,000
Loss of estate : `15,000
Total : `86,43,974
So far as the compensation granted to the Injured- Ms. Laxmi Juneja is
concerned, this Court finds that the compensation granted to her is on
the lower side. This Court finds that the compensation of ` 50,000/-
granted to her under the head of „pain and suffering and enjoyment of
life' is inadequate and it is accordingly enhanced to ` 1 lac. Under
the head of special diet, conveyance and attendant charges,
compensation of ` 30,000/- has been granted which also appears to be
on lower side. It is accordingly enhanced from ` 30,000/- to `
50,000/-. The compensation granted to injured is thus re-assessed as
under :-
Medical expenses : `18,900
Physiotherapy : `1,00,000
Pain, suffering & enjoyment of life : `1,00,000
Special diet, attendant and conveyance
Charges : `50,000
Loss of income : `49,200/-
Total : ` 3,18,100/-
20. The re-assessed compensation shall carry the interest @ 9% per
annum and it shall be disbursed in the manner as indicated in the
award. The Insurer shall deposit the compensation in terms of this
judgment within a period of six weeks with the Registry of this
Court and it be disbursed to the Claimants in terms of this
judgment and thereafter, the statutory deposit be refunded to the
Insurer.
21. The above captioned four appeals are disposed of in the aforesaid
terms.
(SUNIL GAUR)
JUDGE
APRIL 06, 2018
P
