Delhi High Court
National Insurance Co Ltd. vs Veena & Ors. on 1 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 01, 2018
+ MAC.APP. 904/2015
NATIONAL INSURANCE CO LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
VEENA & ORS. ..... Respondents
Through: Mr. S.N.Prashar, Advocate
+ MAC.APP. 906/2015
NATIONAL INSURANCE CO LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
KAMLESH & ORS. ..... Respondents
Through: Mr. S.N.Prashar, Advocate
+ MAC.APP. 913/2015
NATIONAL INSURANCE CO LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
JITENDER TANWAR & ANR. ..... Respondents
Through: Mr. Arun K.Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
MAC.APP. 913/2015
MAC.APP. 906/2015
1. Impugned Award of 9th September, 2015 rendered by Motor
Accident Claims Tribunal (henceforth referred to as the "Tribunal")
grants compensation to respondent-Claimants, on account of death of a
vegetable seller- Varun s/o Lala Ram, aged 22 years; Shop keeper- Ajay
s/o Vijay Kumar, aged 20 years and a housewife- Sonia w/o Jitender,
aged 25 years. Parents of deceased- Varun had preferred Claim Petition
No. 640/2011 to seek compensation, as deceased was a bachelor when
this accident had taken place. Deceased- Ajay was also a bachelor and so,
the Claim Petition No. 641/2011 was preferred by his parents. Another
Claim Petition No. 3/12/12 was preferred by husband of deceased- Sonia.
2. To render the impugned Award, the Tribunal has relied upon
evidence of Claimants/ legal heirs of deceased and other documentary
evidence on record. The compensation awarded by the Tribunal to
Claimants with interest @ 9% p.a. in these appeals, is as under:-
S.No. Name of deceased Compensation
Awarded
1. Ajay s/o Vijay Kumar `20,40,416/-
2. Varun s/o Lala Ram `20,40,416/-
3. Sonia w/o Jitender `12,34,876/-
3. The factual background of this case, as noticed in the impugned
Award, is as under:-
"An FIR bearing number 186/2011 was registered on
the statement of one Hem Raj. He stated that on
18.06.2011, he was travelling in his car bearing number
UP-14-C-8801 and his niece Sonia, Ajay, Varun were
travelling by Swift car bearing number DL-2C-AK-9757
which was driven by Jitender husband of his niece Sonia
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and went to Kokeela Van, Kosi. He was driving behind the
Swift car and they stopped at Vamni Khera Hotel for
having some food. He further stated that he told Jitender
that drive the car carefully but Jitender was driving the car
in rash and negligent way and when he reached GT road,
Mundkati Chawki and he saw that car turned turtle and he
asked Jitender what happened he said nothing and he saw
Ajay died due to head injuries. He removed Varun and
Sonia to the hospital but Varun died on the way to the
hospital. He admitted Sonia in Om Hospital where she also
died."
4. Since these three appeals arise out of aforesaid common impugned
Award, therefore, with the consent of learned counsel for the parties,
these appeals have been heard together and are being decided by this
common judgment. The above captioned first two appeals pertain to legal
heirs of deceased- Ajay and Varun, whereas above captioned third appeal
relates to legal heir of deceased- Sonia.
5. While computing the "loss of dependency", the income of
deceased- Ajay was assessed by the Tribunal on minimum wages payable
to a matriculate and multiplier of 18 was applied. Deduction of 1/3 rd
toward "personal expenses" and addition of 50% towards "future
prospects" was made. The break-up of compensation granted by the
learned Tribunal to the legal heirs of deceased- Ajay is as under:-
1. Loss of dependency `16,90,416/-
2. Funeral Expenses `50,000/-
3. Loss of Love & Affection `2,00,000/-
4. Loss of estate `1,00,000/-
Total `20,40,416/-
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6. The Tribunal has assessed the income of deceased- Varun while
taking the minimum wages of a matriculate and by making addition of
50% towards "future prospects". The multiplier applied is of 18 and 1/3rd
towards "personal expenses" has been deducted. The break-up of
compensation granted to the legal heirs of deceased- Varun is as under:-
1. Loss of dependency `16,90,416/-
2. Funeral Expenses `50,000/-
3. Loss of Love & Affection `2,00,000/-
4. Loss of estate `1,00,000/-
Total `20,40,416/-
7. In the case of deceased- Sonia, minimum wages of a non-
matriculate were made the basis to assess the "loss of dependency" while
adding 25% towards "future prospects" and applying multiplier of 18.
But no deduction towards "personal expenses" was made. The break-up
of compensation granted by the Tribunal to legal heir of deceased- Sonia
is as under:-
1. Loss of dependency `11,49,876/-
2. Loss of Love & Affection `25,000/-
3. Loss of consortium `10,000/-
4. Funeral expenses `50,000/-
Total `12,34,876/-
8. Despite service, the driver and owner of the insured vehicle have
not contested before the Tribunal and this Court as well.
9. The challenge to the impugned Award by learned counsel for
appellant-Insurer is on the ground that negligence of driver of the insured
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vehicle has not been established and so, the claim petitions ought to be
dismissed. It is next submitted by counsel for Insurer that the Tribunal
has erred in making addition of 50% towards "future prospects" because
deceased- Varun and Ajay were not having any established income and
even their occupation does not stand proved. Alternatively, it is
submitted that the Tribunal has erred in making addition of 50% towards
future prospects and in any case, addition of 40% of established income
only can be made. Counsel for Insurer further submits that deceased- Ajay
and Varun were bachelors and so, deduction of 50% towards "personal
expenses" has to be made and the Tribunal has erred in deducting 1/3 rd
towards personal expenses of deceased. It is also submitted by counsel for
Insurer that the applicable multiplier is as per the age of claimants and not
as per the age of the deceased. It is further submitted by counsel for
Insurer that the compensation granted by the Tribunal under the non-
pecuniary heads needs to be brought in tune with Supreme Court's
Constitution Bench decision in National Insurance Company Ltd. Vs.
Pranay Sethi & ors. (2017) 16 SCC 680.
10. As regards compensation granted to legal heirs of deceased- Sonia
is concerned, it is submitted by counsel for Insurer that deceased- Sonia
was a housewife and no deduction towards her "personal expenses" has
been made by the Tribunal.
11. Counsel for Insurer submits that the Tribunal has erroneously
concluded that the insured vehicle was not driven by Jitender even
though FIR was registered and charge sheet was filed against him. It is
pointed out by counsel for Insurer that in the Claim Petition filed by
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Jitender, relief was sought against owner and insurer of the vehicle in
question only. Thus, it is submitted that the finding returned by the
Tribunal on the issue of negligence is inconclusive as to who was driving
the insured vehicle on the day of accident. So, it is submitted that the
petition filed by Claimant- Jitender was not maintainable and hence, the
compensation granted to him deserves to be disallowed. Lastly, it is
submitted that imposition of penal interest by the Tribunal is not justified,
as appellant has a statutory right to file the appeal.
12. On the contrary, counsel for respondents-Claimants supports the
impugned Award and submits that the compensation granted by the
Tribunal is just and fair and so, these appeals deserve to be dismissed.
Counsel for Claimant-Jitender has placed on record judgment of 12th
October, 2015 of the criminal court to show that Claimant-Jitender was
acquitted by the criminal court, as it was not proved that he was driving
the insured vehicle on the day of the accident. So, the compensation
awarded to legal heirs of deceased-Sonia is sought to be justified by
learned counsel for Claimant-Jitender.
13. Upon hearing and on perusal of impugned Award, evidence on
record and the decision cited, I find that the finding returned by the
Tribunal on the negligence aspect is inconclusive but in view of acquittal
of Claimant-Jitender by the criminal court, it can be conclusively inferred
that he was not driving the insured vehicle on the day of accident. Though
the evidence of eye witness- Hem Raj has been discarded by the criminal
court as well as by the Tribunal but in the face of evidence on record, it
emerges that the insured vehicle was driven by deceased- Ajay on the day
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of the accident. Thus, the grant of compensation by the Tribunal to legal
heirs of deceased- Sonia is justified. However, the Tribunal has erred in
not making any deduction towards personal expenses of deceased- Sonia.
Deceased-Sonia was a housewife, aged 25 years and in view of Supreme
Court's decision in Jitendra Khimshankar Trivedi & ors. Vs. Kasam
Daud Kumbhar & Ors.(2015) 4 SCC 237, her notional income has to be
assessed at `3,000/- p.m. and after deducting 1/3rd towards personal
expenses, her contribution to the family is re-assessed as under:-
`3,000/- p.m. X 2/3 = `2,000/- p.m.
14. As regards, application of multiplier is concerned, in view of
Supreme Court's decision in Pranay Sethi (Supra), multiplier has to be
applied as per the age of deceased and not claimant and 40% addition
towards "future prospects" has to be made. Considering deceased- Sonia
to be self employed, her notional income has to be taken as her
established income. Accordingly, the "loss of dependency" of deceased-
Sonia is reassessed as under:-
`3,000/- X 2/3 X 12 X 18 X 140/100 = `6,04,800/-
15. As regards compensation granted under the „non pecuniary heads‟,
it needs to be brought in tune with Supreme Court's decision in Pranay
Sethi (supra). Accordingly, compensation granted to legal heirs of
deceased- Sonia by the Tribunal under the head of "loss of love &
affection" is disallowed. However, "funeral expenses" are reduced from
`50,000/- to `15,000/- and compensation granted under the head "loss of
consortium" is increased from `10,000/- to `40,000/-. In addition,
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compensation of `15,000/- is granted under the head "loss of estate".
Accordingly, the compensation payable to legal heir of deceased-Sonia is
reassessed as under:-
1. Loss of Dependency `6,04,800/-
2. Loss of Consortium `40,000/-
3. Funeral Expenses `15,000/-
4. Loss of Estate `15,000/-
Total `6,74,800/-
16. As regards compensation granted to legal heirs of deceased- Varun
and Ajay is concerned, I find that the Tribunal has rightly assessed their
income on minimum wages. Since deceased- Varun and Ajay were
bachelors, therefore, deduction of 50% towards "personal expenses" has
to be made and not 1/3rd as done by the Tribunal. Similarly, the Tribunal
has erred in making addition of 50% towards "future prospects", as in
view of Supreme Court's decision in Pranay Sethi (Supra), addition
towards "future prospects" has to be 40%. In view of above, the "loss of
dependency" in case of deceased- Varun and Ajay is re-assessed as
under:-
`7,826/- X 140/100 X 50/100 X 18 X 12 = `11,83,291/-
17. So far as compensation granted under the „non pecuniary heads‟, to
deceased- Varun and Ajay is concerned, it needs to be brought in tune
with Supreme Court's decision in Pranay Sethi (Supra). Accordingly,
compensation granted by the Tribunal under the head of "loss of love &
affection" is disallowed. The "funeral expenses" are reduced from
`50,000/- to `15,000/- and compensation under the head "loss of estate"
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is also reduced from `1,00,00/- to `15,000/-. Accordingly, the
compensation payable to legal heirs of deceased-Varun and Ajay is
reassessed as under:-
1. Loss of Dependency `11,83,291/-
3. Funeral Expenses `15,000/-
4. Loss of Estate `15,000/-
Total `12,13,291/-
18. Consequentially, the compensation awarded to legal heir of
deceased- Sonia by the Tribunal is reduced from `12,34,876/- to
`6,74,800/- and compensation granted by the Tribunal to deceased-
Varun and Ajay is reduced from `20,40,416/- to `12,13,291/-. The
modified compensation shall carry interest @ 9% p.a. The modified
compensation be released forthwith to Claimants in the ratio and manner
as indicated in the impugned Award. Statutory deposit along with excess
deposit, if any, be refunded to appellant-Insurer.
19. With aforesaid directions, the above captioned three appeals are
disposed of.
(SUNIL GAUR)
JUDGE
AUGUST 01, 2018
r
MAC.APP. 913/2015
MAC.APP. 906/2015
