Delhi High Court
Shri Ram General Insurance Co.Ltd vs Aasiya Vano & Ors on 18 April, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: April 18, 2018
+ MAC.APP. 941/2014 & CMs 17330/14, 21371/14
SHRI RAM GENERAL INSURANCE CO.LTD ..... Appellant
Through: Mr. Kamal Deep, Advocate
versus
AASIYA VANO & ORS .....Respondents
Through: Mr. S.N. Parashar, Advocate for
respondents No.1 to 3
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 28th July, 2014 grants compensation of
`22,10,000/- with interest @ 9% per annum to respondents-Claimants on
account of death of one Nimal Ali @ Niyaz Ali, who had sustained fatal
injuries in a vehicular accident on 9th July, 2012 at Dwarka Palam Road,
near Dwarka Flyover, New Delhi. The factual background, as noticed in
impugned Award, is as under: -
"It is the case of the petitioners that on 9.07.2012 at
about 03.45 hours, the deceased met with an accident due
to the rash and negligent driving of the respondent No. 1
who was driving vehicle No.HR-74-7177 who hit the
deceased with forceful impact and FIR No. 165/12 under
Sections 279/338/304A IPC was lodged at PS Delhi Cantt.
It is stated that the deceased was 30 years of age and was
doing private work as a driver and was earning Rs.
15,000/- p.m. It is averred that the deceased was the sole
bread earner of his family and all the petitioners suffered
financial loss, love and affection and loss of earning which
was caused due to the accident. It is averred that all the
respondents are severally and jointly liable to make the
payment of the compensation amount to the petitioners. It
is prayed that an amount of Rs. 40,00,000/- be awarded as
compensation in favour of the petitioners and against the
respondents."
2. While relying upon evidence recorded, the Motor Accident Claims
Tribunal-2, New Delhi (hereinafter referred to as „the Tribunal‟) has
granted compensation, whose break-up is as under: -
" Loss of dependency : ` 20,40,000/-
Love and affection : ` 50,000/-
Loss of Consortium : ` 1,00,000/-
Loss of Estate : ` 10,000/-
Funeral Expenses : ` 10,000/-
Total : `22,10,000/- "
3. The challenge to impugned Award by learned counsel for
appellant-Insurer is on the ground that the accident in question had taken
place due to contributory negligence of deceased, who was rashly driving
the Dumper No.HR 38R 8826. It is submitted that there was no eye-
witness account and so, the Tribunal has wrongly held the driver of the
insured vehicle responsible for the accident in question.
4. On the quantum of compensation awarded, it is submitted that the
salary of deceased ought to have been assessed at minimum wages and
the compensation granted under the non-pecuniary heads is on higher side
and it needs to be reduced in light of Supreme Court's Constitution Bench
decision in National Insurance Co. Ltd. Vs. Pranay Sethi & Ors. 2017
SCC OnLine SC 1270. It is further submitted that addition of 50%
towards „future prospects‟ is also on higher side and it needs to be
reduced to 40% in light of decision in Pranay Sethi (supra). Thus, it is
submitted that the compensation granted by the Tribunal deserves to be
accordingly modified.
5. On the contrary, learned counsel for respondents-Claimants
submits that instant case is not of contributory negligence and the
compensation awarded is just and proper. Nothing else is urged on behalf
of either side.
6. Upon hearing and on perusal of impugned Award, evidence on
record and the decision cited, I find that the site plan of the spot, coupled
with the mechanical inspection report, does reveal that the insured truck
was struck from behind, but the driver of the insured truck ought to have
stepped into the witness box, so that it could be said as to whether the
instant case is of contributory negligence or not. On the basis of evidence
of record, it cannot be said that the instant case is of contributory
negligence.
7. So far as the compensation granted is concerned, I find that
deceased was a truck driver and in normal course, he would have earned
`10,000/- per month and so, no case is made out to scale down his
income to minimum wages at the relevant time. As regards addition of
50% towards „future prospects‟, I find that in view of decision in Pranay
Sethi (supra), it needs to be reduced from 50% to 40% and it is so
ordered. Accordingly, „loss of dependency‟ is re-assessed at `19,04,000/-
[i.e. `10,000/- + `4,000/- X 12 X 17 - 1/3rd (towards personal expenses)].
8. Under the non-pecuniary heads, in view of decision in Pranay
Sethi (supra), compensation granted under the head of „love and
affection‟ is disallowed and compensation granted under the head of „loss
of consortium‟ is reduced from ` 1 lac to ` 40,000/-. Compensation
granted under the heads of „loss of estate‟ is increased from `10,000/- to
`15,000/- and „funeral expenses‟ are also increased from `10,000/- to
`15,000/-. Accordingly, compensation payable to respondents-Claimants
is re-assessed as under: -
Loss of dependency : ` 19,04,000/-
Loss of Consortium : ` 40,000/-
Loss of Estate : `15,000/-
Funeral Expenses : `15,000/-
Total : `19,74,000/-
9. In light of aforesaid, the quantum of compensation granted to
respondents-Claimants is reduced from `22,10,000/- to `19,74,000/-,
which shall carry interest @ 9% per annum. The excess amount deposited
by appellant-Insurer be refunded and the modified compensation in terms
of this judgment be disbursed to respondents-Claimants in the manner
and ratio as indicated in impugned Award and thereafter, the statutory
deposit be refunded to appellant-Insurer.
10. The appeal and the pending applications are disposed of in the
aforesaid terms.
(SUNIL GAUR)
JUDGE
APRIL 18, 2018
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