Delhi High Court
Poonam vs Kishan Bahadoor & Ors on 2 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 02, 2018
+ MAC.APP. 88/2013 & CMs 1552-53/13
+ MAC.APP. 89/2013 & CMs 1555-56/13
+ MAC.APP. 90/2013 & CMs 1566-67/13
+ MAC.APP. 91/2013 & CMs 1569-70/13
POONAM
RAJESH
SANDEEP
RAJESH & ANR. ..... Appellants
Through: Mr. A.K. Mishra, Advocate
versus
KISHAN BAHADOOR & ORS .....Respondents
Through: Mr. Pankaj Seth, Advocate for
Insurer
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 3rd November, 2010 passed by the Motor
Accident Claims Tribunal, Dwarka Courts, New Delhi (hereinafter
referred to as „the Tribunal‟) grants compensation to appellants/
Claimants/Injured persons-Poonam, Rajesh and Sandeep on account of
injuries sustained by them and to appellants-Rajesh and Anr., on account
of death of a housewife-Shanti, aged 27 years on the day of the accident,
in a vehicular accident, which took place on 27th March, 2004.
2. In the above-captioned four appeals, enhancement of compensation
is sought by appellants-Claimants/Injured persons. The above-captioned
first three appeals are by appellants/injured persons namely Poonam D/o
Om Pal, Rajesh S/o Ram Singh and Sandeep (a minor) S/o Om Pal, who
have been granted compensation of `1,00,000/-, `1,000/- and `80,000/-
respectively, on account of injuries sustained by them in the accident in
question, whereas the above-captioned fourth appeal is by legal heirs of
late Shanti, who have been granted compensation of `3,86,000/-. The
Tribunal has granted interest @ 7.5% per annum on the awarded
compensation for a period of four years only. Penal interest @ 12% per
annum has been also awarded by the Tribunal.
3. Since these four appeals arise out of 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.
4. The factual background common to these appeals, as noticed in the
impugned Award, is as under:-
"On 27/3/2004 Miss Poonam, Rajesh, his wife Smt
Shanti and Sandeep, a young boy of 13 years of age, had
alongwith other passengers of the locality, boarded bus no
DL 1 PB 0128 (hereinafter the "offending vehicle") plying
on route no.46. The bus had gone to Chattarpur Temple.
From there the passengers came back in the offending
vehicle. On 28/3/2004 at about 4 a.m (night) when the
offending vehicle had reached near Kendriya Vidyalaya,
Naraina, on the ring road, it had hit a stationary bus no.
DL 1 PA 7974. The offending bus had been driven in a
negligent manner by respondent no1 (in short R1).
Miss Poona, Rajesh, his wife Smt Shanti and
Sandeep sustained injuries. The injuries sustained by Smt
Shanti proved fatal."
5. To render the impugned Award, the Tribunal has relied upon
evidence of Injured persons/legal heirs of deceased-Shanti and other
documentary evidence on record. The breakup of compensation awarded
by the Tribunal to injured-Poonam is as under:-
S.No. Description Amount
1. Pain and Suffering `60,000/-
2. Loss of Amenities `25,000/-
3. Special Diet `5,000/-
4. Conveyance `5,000/-
5. For medicines `5,000/-
Total ` 1,00,000/-
6. Injured-Rajesh has been awarded token compensation of `1,000/-
by the Tribunal. The breakup of compensation awarded by the Tribunal to
injured-Sandeep is as under:-
S.No. Description Amount
1. Pain and Suffering `50,000/-
2. Loss of Amenities `15,000/-
3. Special Diet `5,000/-
4. Conveyance `5,000/-
5. For medicines `5,000/-
Total ` 80,000/-
7. The breakup of compensation awarded by the Tribunal to the legal
heirs of deceased-Shanti is as under:-
S.No. Description Amount
1. Loss of dependency 18,000 X 17 `3,06,000/-
2. Loss of Consortium `10,000/-
3. Loss of Love and Affection `50,000/-
4. For Funeral Expenses `10,000/-
5. Loss of Estate `10,000/-
Total ` 3,86,000/-
8. Learned counsel for appellants-Claimants/Injured persons submits
that compensation awarded by the Tribunal is inadequate and so,
enhancement of compensation is sought in these appeals. It is submitted
by appellants/Claimants‟ counsel that the Tribunal has erred in not
making any addition towards „future prospects‟ and deceased-Shanti has
been treated to be a housewife, although she was earning well by giving
tuition and so, income of deceased-Shanti ought to be assessed properly.
It is further submitted that deceased-Shanti was aged 27 years on the day
of the accident and so, multiplier of 33 ought to have been applied. It is
also submitted that deceased-Shanti was survived by her husband and a
minor son and so, deduction towards „personal expenses‟ ought to be
1/3rd and not 1/2. It is pointed out that injured-Rajesh and Poonam had
suffered permanent disability, but no compensation on account of „loss of
earning capacity‟ has been granted to them. As far as compensation
granted to injured persons is concerned, learned counsel for appellants
submits that the quantum of compensation granted to them is meager and
it needs to be suitably enhanced.
9. Learned counsel for respondent-Insurer supports the impugned
Award and submits that no case for enhancement is made out. It is
pointed out that the disability suffered by injured-Rajesh was zero
percent. It is submitted that Rajesh, a legal heir of deceased-Shanti, has
not led any evidence on dependency aspect and so, legal heirs of
deceased-Shanti are not entitled to compensation awarded to them. Thus,
dismissal of these appeals is sought by learned counsel for respondent-
Insurer.
10. Attention of this Court is drawn by learned counsel for respondent-
Insurer to Section 173 (2) of the Motor Vehicles Act, 1988 to submit that
appeal filed by injured-Rajesh to claim enhancement of compensation on
account of injuries sustained by him in this accident, is not maintainable
as the compensation awarded to him is less than `10,000/- and so, its
dismissal is sought.
11. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that in view of Section 173 (2) of the Motor Vehicles
Act, 1988, appeal filed by injured-Rajesh to claim enhancement of
compensation granted to him on account of injuries suffered by him in
this accident, is not maintainable as the afore-referred Section mandates
that no appeal shall lie to this Court if quantum of compensation awarded
by the Tribunal is less than `10,000/-. As such, appeal filed by injured-
Rajesh i.e. MAC.APP. 89/2013, alongwith pending applications is hereby
dismissed being not maintainable.
12. It is true that injured-Rajesh, as a legal heir of deceased-Shanti, had
led evidence, but he did not depose anything on the dependency aspect. It
has also come in the evidence that after death of Shanti, her husband-
Rajesh had remarried after three years. Even if Rajesh, husband of
deceased-Shanti, had inadvertently not deposed on the dependency
aspect, but still judicial notice can be taken of the fact that he and his
minor son had suffered on account of death of Shanti, who was aged 27
years on the day of the accident. The Tribunal has rightly assessed the
notional income of deceased-Shanti, but has erred in deducting 50%
towards „personal expenses‟. In view of Supreme Court's Constitution
Bench in National Insurance Company Ltd. Vs. Pranay Sethi & ors.
(2017) 16 SCC 680, deduction towards „personal expenses‟ ought to be
1/3rd as she had left behind her husband and a minor son and addition
towards „future prospects‟ ought to be 40%.
13. In view of Supreme Court's decision in Sarla Verma (Smt.) & Ors.
Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, the
applicable multiplier is of 17, as adopted by the Tribunal and not of 33, as
claimed by the legal heirs of deceased-Shanti. The Tribunal has erred in
not making addition of 40% towards „future prospects‟ on the basis of
notional income of deceased-Shanti, aged 27 years. Accordingly, the loss
of dependency of legal heirs of deceased-Shanti is reassessed as under: -
`36,000/- p.a. X 2/3 X 17 X 140/100= `5,71,200/-
14. In view of Supreme Court's Constitution Bench decision in Pranay
Sethi (supra), the compensation granted by the Tribunal under the head of
„loss of love & affection‟ is disallowed. However, compensation under the
head of „loss of consortium‟ is enhanced from ₹10,000/- to ₹40,000/- and
compensation granted under the head of „loss of estate‟ is enhanced from
`10,000/- to `15,000/-. Likewise, „funeral expenses‟ are also enhanced
from `10,000/- to `15,000/-.
15. In light of the aforesaid, the compensation payable to legal heirs of
deceased-Shanti is reassessed as under:-
Sr. Description Amount
No.
1 Loss of Dependency `5,71,200/-
2 Loss of Consortium ₹40,000/-
4 Loss of Estate ₹15,000/-
5 Funeral Expenses ₹15,000/-
Total ₹6,41,200/-
16. As regards compensation granted by the Tribunal to injured-
Sandeep, a student, I find that he was aged 13 years on the day of the
accident and as per the evidence of his mother-Smt. Santosh, no
permanent physical impairment was detected by the Board of Directors,
which had issued Disability Certificate (Ex.PW3/1). Hospitalization of
injured-Sandeep was for a period of one week only. Considering the
nature of injuries sustained by injured-Sandeep, I find that the Tribunal
has rightly granted compensation of `80,000/- to him and therefore, it is
accordingly maintained.
17. As regards compensation granted to injured-Poonam, a student on
the day of the accident, I find that as per the Disability Certificate
(Ex.PW2/1), she had suffered visual handicap of 30% in relation to right
eye, as a result of the injuries sustained by her in this accident and her
treatment had continued for about 5 to 6 months since the day of the
accident. The Tribunal has erred in discarding Disability Certificate
(Ex.PW2/1) of injured-Poonam on the ground that it is not duly proved on
record by any doctor. It is so said because the authenticity of this
Disability Certificate (Ex.PW2/1) is not in doubt. The Tribunal has erred
in not granting any compensation to injured-Poonam due to the disability
suffered by her in this accident. In light of Supreme Court's decision in
Master Mallikarjun Vs. Divisional Manager, The National Insurance
Company Ltd & Anr., AIR 2014 SC 736, lump sum compensation in case
of children suffering disability of 10% to 30% in a motor accident has
been quantified at `3 lacs. The compensation granted to injured-Poonam
under the „non-pecuniary heads‟ and „medical expenses‟ is found to be
just and proper and is, therefore, maintained. Accordingly, the
compensation payable to injured-Poonam is reassessed as under: -
S.No. Description Amount
1. Loss due to disability `3,00,000/-
2. Pain and Suffering `60,000/-
3. Loss of Amenities `25,000/-
4. Special Diet `5,000/-
5. Conveyance `5,000/-
6. For medicines `5,000/-
Total ` 4,00,000/-
18. In light of aforesaid, total compensation payable to legal heirs of
deceased-Shanti is enhanced from `3,86,000/- to `6,41,200/-. Likewise,
compensation payable to injured-Poonam is also enhanced from
`1,00,000/- to `4,00,000/-. However, compensation payable to injured-
Sandeep, as awarded by the Tribunal, is found to be just and proper and is
hence maintained.
19. A Three Judge Bench of Supreme Court in a recent decision of
Jagdish v. Mohan and Others, (2018) 4 SCC 571 has granted interest @
9% per annum on the awarded compensation and so, appellants are also
entitled to interest @ 9% per annum. The enhanced compensation, with
interest @ 9% per annum, be deposited by the Insurer with the Tribunal
within six weeks from today. The modified compensation, with interest,
be released to Claimants in the ratio and manner as indicated in the
impugned Award. Penal interest awarded by the Tribunal stands waived.
20. The above-captioned four appeals alongwith pending applications
are disposed of in aforesaid terms.
(SUNIL GAUR)
JUDGE
AUGUST 02, 2018
s
