Delhi High Court
The Oriental Insurance Co Ltd vs Shama Parveen & Ors. on 24 April, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: April 24, 2018
+ MAC.APP. 774/2014
THE ORIENTAL INSURANCE CO LTD ..... Appellant
Through: Mr.A.K.Soni, Advocate
Versus
SHAMA PARVEEN & ORS. ..... Respondents
Through: Mr. S.K. Jha, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Appellant is the Insurer of bus bearing No. DL-1PB-5035, which
was involved in a vehicular accident on 29th November, 2010 and in the
said accident, one Mohd. Jahangir, aged around 40 years (as per Post
Mortem Report), who was working as rickshaw pullar, had died. The
Motor Accident Claims Tribunal (hereinafter referred to as "the
Tribunal"), vide impugned Award of 11th July, 2014, has awarded
compensation of ` 9,53,476.80/- to respondents-claimants along with
interest @ 9% p.a. The facts, as noticed in the impugned Award, are as
under:-
"Brief facts as epitomized in present petition are
that on fateful day i.e. 29.11.2010 at about 08.05 pm,
the driver of the offending vehicle bus bearing no. DL-
1PB-5035 running his vehicle bus in a rashly and
negligent manner on the road and when the driver
reached at Bharat Nagar Bus Stop, the vehicle hit the
victim, who had come there to board the bus,
resultantly causing fatal injuries to victim. Driver of
the bus run away from the spot. The victim was
removed to AIIMS Hospital for treatment where he
died. An FIR No. 280/2010 under section
279/337/304A IPC with police station New Friends
Colony was registered for this accident against erring
driver - first respondent namely Krishan Pal."
2. To render the impugned Award, the Tribunal has relied upon
evidence of Mohd. Chand, son of deceased (PW-2); Jeet Singh Rana
(PW-3), who has deposed regarding registration of criminal case with
respect to accident in question; Mahender Kumar (R2W1), owner of the
bus in question; Raj Pal (R3W1), Assistant Manager of appellant-
Insurance Company and S.D.Sharma, Head Clerk, State Transport
Authority, Rajpur Road (R3W2), who has deposed regarding the permit
issued in respect of bus in question.
3. On the strength of afore-referred evidence on record, impugned
Award has been rendered. The Tribunal in the impugned Award has
assessed the income of deceased as `6,861.4/- p.m. and has deducted 1/3rd
towards personal expenses of deceased and addition of 30% towards
„future prospects‟ has been made by the Tribunal and by applying
multiplier of 14, loss of dependency has been assessed at `7,68,476/-.
The breakup of compensation awarded by the Tribunal is as under:-
S.No. Description Amount
1. Loss of Dependency `7,68,476/-
2. Loss of Consortium `1,00,000/-
3. Loss of Love & Affection `75,000/-
5. Loss of Estate `10,000/-
Total `9,53,476.80/-
4. The challenge to the impugned Award by learned counsel for
appellant-Insurer is on the ground that there is no proof of negligence of
driver of bus in question. It is pointed out that there is no eye witness of
this accident and the Tribunal has relied upon the factum of registration
of a criminal case regarding the accident in question whereas the driver of
bus in question has been acquitted in the criminal case and so, finding of
negligence is liable to be set aside.
5. On the quantum of compensation awarded, learned counsel for
appellant-insurer has drawn attention of this Court to a copy of Ration
Card (EX PW1/A) of deceased, which indicates that the deceased was
aged 55 years on 25th September, 2010 and submits that in view of
decision of Constitution Bench of Supreme Court in National Insurance
Company Ltd. Vs. Pranay Sethi & ors. 2017 SCC OnLine SC 1270,
addition towards future prospects has to be 10% and not 30%.
6. It is further submitted by counsel for appellant-insurer that
appellant's wife and his widowed daughter were dependent upon him and
so, deduction towards „personal expenses‟ of deceased ought to have
been 50% and not 1/3rd. It is further submitted by appellant's counsel that
as per evidence of R3W2-Head Clerk from concerned Transport
Authority, the owner of the bus in question was not having a valid permit
on the day of the accident and so, liability to pay compensation is of the
owner of the bus and not of appellant-insurer. Thus, setting aside of
impugned Award is sought. Nothing else is urged on behalf of appellant.
7. On the contrary, learned counsel for respondents-claimants
supports the impugned Award and submits that the compensation
awarded is just and proper.
8. Upon hearing and on perusal of impugned Award, evidence on
record and the decision cited, I find that acquittal in a criminal case has
no bearing on the determination of negligence in proceedings like the
instant one. A bare perusal of the site plan of the spot reveals that the
negligence was of the bus driver. The result of criminal case is thus
inconsequential. It is settled legal position that de hors acquittal of a
driver in criminal case, the Tribunal is expected to make an independent
inquiry to reach a conclusion as to whether negligence on the part of
driver of the offending vehicle had been proved on the touchstone of
preponderance of probability or not, rather than on proof of guilt beyond
all reasonable doubt.
9. Regarding therebeing no valid permit of bus in question on the date
of accident, I find that it has come in the cross-examination of R3W2-
Head Clerk from Transport Authority that application for renewal of the
permit was made on 27th October, 2010, but the renewal was done on 30 th
November, 2010. Since fee for renewal of permit was deposited by the
owner of vehicle in question in time, therefore, benefit of non-renewal of
permit will not accrue to the Insurer and thus, liability to pay the
compensation would be of appellant-insurer and not of owner of vehicle
in question.
10. Regarding addition of 30% towards future prospects, I find that
reliance placed upon Post Mortem Report by the Tribunal is not justified,
particularly when the Ration Card (EX PW1/A) on record reveals that on
the day of accident, deceased was aged more than 55 years. Therefore,
addition of 30% towards „future prospects‟ is uncalled for and in view of
decision of Supreme Court in Pranay Sethi (Supra), addition of 10%
towards „future prospects‟ is to be made.
11. So far as deduction of „personal expenses‟ is concerned, I find that
there is no cross-examination of son of the deceased on this aspect.
Therefore, the Tribunal has rightly deducted 1/3rd towards personal
expenses. Since the deceased was aged 55 years, therefore, the applicable
multiplier would be of 11 and not of 14, as applied by the Tribunal.
12. In the light of aforesaid, the „loss of dependency' is reassessed as
under:-
`5805.8 X 2/3 X 11 X 12= `5,10,910.40/-
13. As regards compensation under the „non pecuniary heads‟, it needs
to be brought in tune with decision of Constitution Bench of Supreme
Court in Pranay Sethi (supra). Accordingly, compensation granted by the
Tribunal under the head of „loss of love & affection‟ is disallowed and
compensation granted under the head of „loss of consortium‟ is reduced
from `1,00,000/- to `40,000/-. Compensation under the head of „loss of
estate' is enhanced from `10,000/- to `15,000/- and compensation of
`15,000/- under the head of „funeral expenses‟ is also granted.
14. In view of aforesaid, the compensation payable to respondents-
claimants is recalculated as under:-
S.No. Description Amount
1. Loss of Dependency `5,10,910/-
2. Loss of Consortium `40,000/-
3. Loss of Estate `15,000/-
5. Loss of Funeral Expenses `15,000/-
Total `5,80,910/-
Consequentially, the compensation amount payable stands reduced from
`9,53,476.80/- to `5,80,910/-.
15. The re-assessed compensation shall carry interest @ 9% per annum
and it shall be disbursed in the manner as indicated in the Award. The
excess deposit with statutory deposit be refunded to appellant-insurer and
re-assessed compensation be released forthwith to respondents-claimants.
16. With aforesaid directions, this appeal is disposed of.
(SUNIL GAUR)
JUDGE
APRIL 24, 2018
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