National Insurance Co Ltd vs Meenu Bhatiya & Ors
2018 Latest Caselaw 2280 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of Decision: April 12, 2018

+                    MAC.APP. 56/2017 & CM 1878/2017

      NATIONAL INSURANCE CO LTD               ..... Appellant
                   Through: Mr. L.K. Tyagi, Advocate
                     versus

      MEENU BHATIYA & ORS                        .....Respondents
                   Through: Mr.Aatreya Singh and Mr. Rajiv
                   Kumar Trivedi, Advocates for respondents No.1
                   to 5-Claimants
      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR

                              JUDGMENT

(ORAL)

1. The Motor Accident Claims Tribunal-1 (Central), Delhi (hereinafter referred to as „the Tribunal‟) vide impugned Award of 18th October, 2016 has granted compensation of `43,59,496/- to respondents- Claimants on account of death of one Arvind Kumar @ Aravind Bhatiya, aged 31 years, in a vehicular accident on 7th December, 2014. The facts, as noticed in impugned Award, are as under: -

"In brief, FIR No. 698/14 dated 08.12.2014 U/s 279/337/304A IPC was registered at Police Station: Ranjit Nagar on statement of injured Ashok Kumar aged about 19 years. As per statement of Ashok Kumar on 07.12.2014 he along with Arvind Singh @ Arvind Bhatiya @ Aravind Bhatiya who was working with him in Delhi Academy of Medical Sciences Pvt. Ltd. were proceeding towards their

home after attending a marriage on motorcycle bearing registration No. DL 4SBX 8514 which was driven by Arvind Singh. About 11:45PM on Patel Road, Metro Pillar No. 255, Near Shadipur Flyover, the bike got unbalanced as it touched a car and in the meantime was further hit by truck bearing registration No. HR-38U-0577 carrying JCB machine. Consequently, the motorcycle was dragged along with the truck, resulting in fatal injuries to Arvind Singh, who was declared brought dead at Kalra Hospital and simple injuries to Ashok Kumar."

2. The Tribunal on the basis of evidence led has held that Arvind Kumar @ Aravind Bhatiya had died in a vehicular accident due to rash and negligent driving of insured truck by Govind Kumar. The Tribunal has assessed the income of deceased, who was working as a Marketing Executive in a Private Company, on the basis of attested copy of his Salary Summary Sheet and has concluded that the income was `18,331/- per month. Addition of 50% towards „future prospects‟ has been made and after deducting 1/4th towards „personal expenses‟ and by applying multiplier of 16, the „loss of financial dependency‟ has been assessed at `39,59,496/-. Under the head of „non-pecuniary damages‟, compensation of `4 lacs in all has been granted. The break-up of compensation granted by the Tribunal to the legal heirs of late Arvind Singh @ Aravind Bhatiya is as under: -

           Loss of financial dependency             ` 39,59,496/-
           Loss of Consortium to Wife                ` 1,50,000/-
           Loss of love and affection                ` 1,50,000/-
           Loss of Estate                              ` 50,000/-
           Funeral Expenses                            ` 50,000/-
           Total                                    ` 43,59,496/-

3. Interest @ 9% per annum has been granted by the Tribunal on the awarded amount and the manner of disbursal of compensation is also indicated in impugned Award.

4. The challenge to impugned Award by learned counsel for appellant is on the ground that the incident in question had taken place due to negligence of the deceased and not of driver of the insured truck in question. In the alternative, it is submitted by learned counsel for appellant that otherwise also, there was contributory negligence of deceased. Another ground put forth by learned counsel for appellant to assail impugned Award is that gross salary of deceased has been taken into consideration, whereas after excluding the Conveyance Allowance and Education Allowance, the net monthly salary of deceased, i.e. `16,621/-, ought to have been made the basis for assessing the „loss of dependency‟. Appellant's counsel submits that addition of 40% towards „future prospects‟ ought to have been made, as deceased was working on a fixed salary in a private concern.

5. Regarding deduction of 1/4th towards „personal expenses‟ of deceased, it is submitted by learned counsel for appellant that the legal heirs of deceased are his wife, one married daughter, one unmarried sister and parents and since father of deceased was an ex-serviceman and was getting pension, therefore, his wife and daughter were dependent upon father of deceased and not upon deceased and so, deduction of 1/3rd towards „personal expenses‟ of deceased ought to have been made. Lastly, it is submitted by learned counsel for appellant that compensation granted under the „non-pecuniary heads‟ deserves to be brought in tune

with the compensation granted under these heads by a constitution bench of Supreme Court in National Insurance Co. Ltd. Vs. Pranay Sethi & Ors. 2017 SCC OnLine SC 1270.

6. On the other hand, learned counsel for respondents-Claimants supports impugned Award and submits that negligence was of truck driver and compensation has been rightly assessed by the Tribunal and so, this appeal deserves dismissal.

7. Upon hearing and on perusal of impugned Award and the evidence on record, I find that injured-Ashok Kumar Sahu (PW-3) in his evidence has deposed that the motorcycle driven by deceased had touched the rear side portion of the car plying ahead of it, due to which the motorcycle of deceased became disbalanced. However, he has deposed that deceased had controlled the balance of motorcycle, but it was hit by the truck which came on the road from behind and front portion of truck struck against the motorcycle, due to which, deceased fell down and had sustained fatal injuries.

8. Upon scrutiny of cross-examination of Ashok Kumar Sahu (PW-3), I find that though the motorcycle of deceased had become disbalanced, but deceased had not fallen from the motorcycle when his motorcycle had touched the rear portion of the car and it was only when, the insured truck in question had hit the motorcycle that deceased had fallen down and sustained fatal injuries. In the face of evidence of Ashok Kumar Sahu (PW-3), I hold that the Tribunal has rightly concluded the truck driver to be negligent in causing of accident in question.

9. Regarding the assessment of net income of deceased, I find that Supreme Court in National Insurance Company Ltd. v. Indira Srivastava

& Ors., (2008) 2 SCC 763, has declared that the gross income of the deceased has to be taken into consideration. So, I find that the Tribunal has rightly assessed the income of deceased on the basis of gross income.

10. So far as addition of 50% towards „future prospects‟ is concerned, I find that the evidence on record is lacking as regards deceased being in permanent employment. It has come in evidence of Pankaj Goel (PW-2), a witness from the Company where deceased was employed, that no employment letter was issued to deceased. Therefore, addition of 40% instead of 50% towards „future prospects‟ has to be made.

11. Regarding deduction of 1/4th towards „personal expenses‟ of deceased, I find that since the amount of pension received by father of deceased is not forthcoming, therefore, deduction of 1/4 th towards „personal expenses‟ of deceased is justified. So far as „non-pecuniary damages‟ are concerned, I find that in view of Supreme Court's decision in Pranay Sethi (supra), compensation granted under the head of „loss of consortium‟ is required to be reduced and is as such reduced from `1,50,000/- to `40,000/-. Similarly, the compensation granted under the head of „loss of estate‟ is reduced from `50,000/- to `15,000/-. The „funeral expenses‟ are also reduced from `50,000/- to `15,000/-. Since no compensation under the head of „love and affection‟ is payable in view of Supreme Court's decision in Pranay Sethi (supra), therefore, compensation of `1,50,000/- granted under this head is disallowed. The compensation granted under the head of „loss of financial dependency‟ is reassessed at `36,95,520/- [i.e. ` 2,19,972/- (annual income) + ` 87,988/- (addition of 40% towards future prospects) X 16 (multiplier) X 3/4th (dependency)].

12. The compensation payable to respondents-Claimants is reassessed as under: -

          Loss of financial dependency              ` 36,95,520/-
          Loss of Consortium to Wife                      ` 40,000/-
          Loss of Estate                                  ` 15,000/-
          Funeral Expenses                                ` 15,000/-
          Total                                     ` 37,65,520/-

13. The reassessed compensation shall carry interest @ 9% per annum thereon and shall be disbursed in the manner as already indicated in the impugned Award. The excess amount of compensation deposited by appellant be refunded alongwith the statutory deposit. Thereafter, compensation in terms of this judgment be released forthwith to respondents-Claimants.

14. In view of aforesaid, impugned Award stands modified accordingly.

15. The appeal and the application stand disposed of.

(SUNIL GAUR) JUDGE APRIL 12, 2018 s