Delhi High Court
Sakl Paswan & Anr. vs Jai Nandan Bhagat & Ors. on 18 April, 2018
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 18th April, 2018
+ MAC.APP. 664/2013
SAKL PASWAN & ANR. ..... Appellants
Through: Mr. O.P. Mannie and Ms.
Hreeshikha Bhargav, Advocates
Versus
JAI NANDAN BHAGAT & ORS. ..... Respondent
Through: Mr. Pankaj Gupta for Ms. Suman
Bagga, Adv. for R-3
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Mithlesh Kumar, aged 17 years (borne on 06.03.1992), working
as a helper died as a result of injuries suffered in a motor vehicular
accident that had occurred on 18.08.2009 due to negligent driving of
vehicle bearing registration no.DL-1LE-1363 (a tractor). An accident
claim case (MACT 183/12/10) was instituted on 12.05.2010 by the
appellants, they being the father and mother, respectively of the
deceased. The case was contested by the third respondent (insurer)
and also by the second respondent (the owner of the tractor).
2. The Motor Accident Claims Tribunal (Tribunal), by judgment
dated 31.01.2013, returned a finding holding the tractor driver (first
respondent) responsible for the fatal accident. It awarded
compensation in the total sum of Rs.2,04,372/- with interest at the rate
of 7.5% p.a., exonerating the insurer accepting its plea that the
deceased was a gratuitous passenger.
3. The present appeal was filed seeking enhanced compensation
on the ground the tribunal has fallen into error by applying the
multiplier of 14 according to the age of the claimants and has not
added the element of future prospects of increase. The claimants also
submit the rate of interest granted is inadequate and further that the
insurance company could not have been exonerated, the plea to above
effect not even having been taken in the written statement. It is also
their grievance that an amount of Rs.1,00,000/- gratuitously received
from the owner of the vehicle has been wrongly deducted.
4. The contention about the impropriety of the multiplier and the
error on account of the future prospects not being added must be
accepted, having regard to the ruling of a 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.
5. The tribunal had assumed the notional income with the help of
minimum wages (Rs.3,953/-). The multiplier of 18 will have to be
invoked in view of the age of the deceased and the element of future
prospects deserves to be added to the extent of 40%. Thus, the loss of
dependency is recalculated as [Rs.3,953/- x 140/100 / 2 x 12 x 18]
Rs.5,97,693.60, rounded off to Rs.5,98,000/-.
6. The non-pecuniary damages as included in the award by the
tribunal also need correction. Following the dispensation in Pranay
Sethi (supra), Rs.15,000/- each towards loss to estate and funeral
expenses are added. Thus, the total compensation in the case is
computed as [Rs.5,98,000/- + Rs.15,000/- + Rs.15,000/-]
Rs.6,28,000/-.
7. The record shows that on 21.01.2013, the claimants through
counsel had fairly admitted before the tribunal that the second
respondent had paid Rs.1,00,000/- as compensation and that such
amount will have to be deducted. In this view, the counsel for the
appellants does not press for any correction on that account.
8. The amount of Rs.1,00,000/- being deducted, the net
compensation payable to the claimants is calculated as [Rs.6,28,000/-
(-) Rs.1,00,000/- = Rs.5,28,000/- (Rupees Five lakh and twenty eight
thousand only]. Ordered accordingly.
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. This court finds the conclusion about exoneration of the
insurance company to be incorrect. No plea to the effect noted above
was taken in the written statement. Such plea could not have been
sprung as a surprise at the conclusion of the inquiry. There is no
reason why the insurance company should be exonerated. The
direction of the tribunal to that effect is set aside.
11. The counsel for the appellants (claimants) submits that only
Rs.50,000/- as interim compensation was received from the insurance
company (besides Rs.1,00,000/- from the registered owner of the
vehicle). The insurance company is, thus, directed to pay the balance
after adjusting the amount also paid as interim compensation, by
requisite deposit with the tribunal within 30 days hereof. The
apportionment of the compensation as directed by the tribunal shall
prevail.
12. The appeal is disposed of in above terms.
R.K.GAUBA, J.
APRIL 18, 2018
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