Delhi High Court
National Insurance Co Ltd. vs Raj Rani & Ors. on 6 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 06, 2018
+ MAC.APP. 661/2015
NATIONAL INSURANCE CO LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
RAJ RANI & ORS. ..... Respondents
Through: Mr. Anil Panwar & Mr. Rajinder
Juneja, Advocates for respondent
No.1
Mr. R.S. Lathwal, Advocate for
respondents No.2 & 3
+ MAC.APP. 662/2015
NATIONAL INSURANCE CO LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
MANISH & ORS. ..... Respondents
Through: Mr. Anil Panwar & Mr. Rajinder
Juneja, Advocates for respondent
No.1
Mr. R.S. Lathwal, Advocate for
respondents No.2 & 3
+ MAC.APP. 663/2015
NATIONAL INSURANCE CO LTD ..... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
RAJ RANI & ORS. ..... Respondents
MAC. APP. 661/2015 & connected matters Page 1 of 8
Through: Mr. Anil Panwar & Mr. Rajinder
Juneja, Advocates for respondents
No.1 to 4
Mr. R.S. Lathwal, Advocate for
respondents No.5 & 6
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 22nd April, 2015 rendered by Motor Accident
Claims Tribunal (henceforth referred to as the "Tribunal") grants
compensation to respondent-Claimants, on account of death of a Head
Constable of Delhi Police-Suresh Kumar, aged 46 years and 05 months
on the date of the accident. Impugned Award also grants compensation to
Injured-Raj Rani and Manish on account of injuries suffered by them in
the accident in question.
2. To render the impugned Award, the Tribunal has relied upon
evidence of Injured/ legal heirs of deceased and other documentary
evidence on record. The compensation awarded by the Tribunal to
Claimants and Injured (without interest) in these appeals, is as under:-
S.No. Names of Claimants/Injured Compensation
Awarded
1. Raj Rani `1,50,000/-
2. Manish `50,000/-
3. Raj Rani and Ors. (legal heirs of `41,60,336/-
deceased Suresh)
3. The factual background of this case, as noticed in the impugned
Award, is as under:-
"As per the case of petitioners, on 12.07.09,
petitioners Smt. Raj Rani and Manish alongwith Suresh
Kumar (husband of Smt. Raj Rani and father of Manish)
were returning to Delhi after visiting Balaji Mandir in
Rajasthan. They were travelling in a car bearing no.DL3
CM 6942. Whey they were near Chatti Mill, Alwar,
Rajasthan, a stray cow came on the road. Driver of their
Car applied sudden brakes and turned his Car towards the
right side. It hit another car (Indica bearing no. RJ 02 CA
2452) coming from opposite side, Suresh Kumar and both
of petitioners (Raj Rani and Manish) suffered injuries.
Suresh Kumar succumbed to his injuries. FIR 274/09 was
registered in PS Sadar, Alwar Rajasthan for offences
punishable u/s 279/337/304A IPC."
4. Out of the above captioned three appeals, first one relates to
Injured-Raj Rani, the second one pertains to Injured-Manish and the third
one relates to legal heirs of deceased-Suresh. 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.
5. While computing the "loss of dependency", the income of
deceased- Suresh Kumar was assessed by the Tribunal at ₹22,842/- p.m.
and multiplier of 13 was applied. Deduction of 1/4th towards "personal
expenses" and addition of 30% towards "future prospects" was made.
The break-up of compensation granted by the learned Tribunal to the
legal heirs of deceased- Suresh Kumar is as under:-
1. Loss of dependency `37,26,336/-
2. Funeral Expenses `25,000/-
3. Loss of Love & Affection `4,00,000/-
4. Loss of estate `10,000/-
Total `41,60,336/-
6. In the case of Injured-Manish, the Tribunal has granted lump-sum
compensation of `50,000/- for "pain and sufferings" due to injuries
suffered by him in this accident. In the case of Injured-Raj Rani, the
Tribunal has granted lump-sum compensation of `1,00,000/- towards
"medical expenses" and `50,000/- under the head "pain and sufferings".
7. The challenge to impugned Award by learned counsel for
appellant-Insurer is on the ground that risk of occupants of the insured
vehicle is not covered under the insurance policy in question, which is a
liability only policy. To submit so, reliance is placed upon Supreme
Court's decision in Oriental Insurance Company Ltd. Vs. Sudhakaran
K.V. and Ors. (2008) 7 SCC 428 and National Insurance Company
Limited Vs. Balakrishnan and Anr. (2013) 1 SCC 731. Counsel for
appellant-Insurer further submits that no negligence is attributable to
driver of the insured vehicle and so, the Insurer has no liability to pay the
compensation awarded. On the quantum aspect, counsel for Insurer
submits that in the case of deceased-Suresh Kumar, while assessing his
"loss of dependency", the Tribunal has taken into consideration 13
months' salary of the deceased, whereas his 12 months' salary ought to
have been taken. It is also submitted by counsel for Insurer that legal
heirs of deceased- Suresh are his father and his children of major age,
who were not dependent upon him. And so, it is submitted that deduction
of 50% towards "personal expenses" ought to have been made and not
1/4th, as has been done by the Tribunal.
8. It is next submitted that so far as compensation granted to legal
heirs of deceased-Suresh Kumar under the non-pecuniary heads is
concerned, it ought 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.
9. As regards Injured- Raj Rani, it is submitted by counsel for Insurer
that lump-sum compensation of ₹1,00,000/- has been granted towards
"medical expenses" though no medical bills were brought on record. It is
submitted that compensation granted to Injured- Raj Rani and Manish
under the head "pain and suffering" is exorbitant, as there is nothing on
record to suggest as to what was the nature of injuries suffered by them.
Lastly, it is submitted by counsel for appellant-Insurer that these appeals
deserve to be allowed.
10. On the other hand counsel for Claimants-Injured and legal heirs of
deceased as well as counsel for driver and owner of the vehicle in
question, support the impugned Award and submit that the compensation
awarded is just and fair. Counsel for driver and owner of the insured
vehicle points out that Insurer had not taken the plea of „liability only
policy‟ in the written statement before the Tribunal and no evidence had
been led by Insurer on this aspect and there was no cross-examination of
the witnesses on this point and so, counsel for Insurer be precluded from
urging this plea in these appeals and submits that there is no merit in
these appeals and so, these appeals be dismissed.
11. Upon hearing and on perusal of impugned Award, evidence on
record and the decisions cited, I find that the decisions in Sudhakarn K.V.
(Supra) and Balakrishnan (Supra), are of no assistance to the case of the
Insurer, as the original Insurance Policy is not on record and the
photocopy of the Insurance Policy placed on record before the Tribunal,
is not legible. There is no plea in the reply to the claim petition by the
Insurer regarding the Insurance Policy in question being Act Policy or
otherwise. Pertinently, there is no cross-examination of the witnesses
examined on this aspect. In view thereof, the Insurer's plea of insured
vehicle being not covered under the Insurance Policy is without any merit
and is hence, negated. Regarding negligence of driver of the insured
vehicle, there is no cross-examination of the witnesses examined.
Otherwise also, on perusal of evidence and site plan of place of accident
on record, I find that there is negligence of driver of vehicle in question,
as instead of turning towards right side of the road, he ought to have
turned on the left side, which would have certainly avoided happening of
the accident in question.
12. On the quantum aspect, I find that the Tribunal has erred in taking
into consideration 13 months' salary of deceased- Suresh Kumar.
Computation of "loss of income" has to be on annual income. On the
dependency aspect, there is no cross-examination of the witnesses
examined and so, deduction of 1/4th towards personal expenses of the
deceased is maintained. In view of Supreme Court's decision in Pranay
Sethi (Supra), this Court finds that appropriate multiplier has been
applied and addition towards "future prospects" is also appropriate and is
therefore maintained. In view of above, the "loss of dependency" in
respect of deceased- Suresh is reassessed as under:-
₹22,842/- X 12 X 130/100 X 3/4 X 13 = `34,74,268/-
13. So far as compensation granted under the „non pecuniary heads‟ 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 `25,000/- to `15,000/- but
compensation under the head "loss of estate" is enhanced from `10,000/-
to `15,000/-. In addition, the legal heirs of deceased are granted
compensation of `40,000/- under the head "loss of consortium".
Accordingly, the compensation payable to legal heirs of deceased-Suresh
Kumar is reassessed as under:-
1. Loss of Dependency `34,74,268/-
2. Loss of Consortium `40,000/-
3. Funeral Expenses `15,000/-
4. Loss of Estate `15,000/-
Total `35,44,268/-
14. As regards compensation granted to Injured -Manish is concerned,
I find that he has deposed before the Tribunal that he had sustained
injuries on his mouth, both hands and legs. There is a reference of
medical bill Ex PW2/A but copy of medical record has not been filed.
Therefore, the Tribunal was justified in not reimbursing medical bills. In
the face of evidence of injured-Manish, I find that the compensation of
`50,000/- granted to him under the head "pain and sufferings" is
justified.
15. So far as compensation granted to Injured- Raj Rani is concerned, I
find that there are medical prescriptions on record, which indicate that she
had remained under treatment from July, 2009 till June, 2012. Although
medical bills to this effect are not on record, but while taking into account
the fact that she had remained under treatment for a long period, the
Tribunal was justified in granting lump-sum compensation of `1,00,000/-
under the head "medical expenses". The compensation of `50,000/-
granted to her under the head "pain and sufferings" appears to be
justified in the face of evidence on record.
16. Consequentially, the compensation awarded by the Tribunal to
legal heirs of deceased- Suresh Sharma is reduced from `41,60,336/- to
`35,44,268/- and compensation granted to Injured-Manish and Raj Rani
is maintained. In a recent decision, a Three Judge Bench of Supreme
Court in Jagdish v. Mohan and Others, (2018) 4 SCC 571 has granted
interest @ 9% per annum on the awarded compensation and so, in the
instant case, it is directed that the re-assessed compensation shall carry
interest @ 9% per annum. The reassessed compensation be disbursed to
legal heirs of deceased-Suresh Kumar in the ratio and manner as
indicated in the impugned Award. Awarded compensation with interest
@ 9% per annum be also released to Injured- Raj Rani and Manish
forthwith. Statutory deposit and excess deposit, if any, be refunded to
Insurer.
17. With aforesaid directions, the above captioned three appeals are
disposed of.
(SUNIL GAUR)
JUDGE
AUGUST 06, 2018
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