Delhi High Court
Sheela Singh vs Renu & Ors on 9 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: August 09, 2018
+ MAC.APP. 253/2017
RENU & ORS .....Appellants
Through: Mr. Mrinal Harsh Vardhan,
Advocate
versus
SHRIRAM GENERAL INSURANCE COMPANY LTD & ORS
..... Respondents
Through: Mr. Sameer Nandwani and Mr.
Mohd. Shakim, Advocates for
respondent No.1-Insurer
Mr. Hara Prasad Sahu, Advocate
for respondents No.2 & 3
+ MAC.APP. 1026/2017
SHEELA SINGH ..... Appellant
Through: Mr. Hara Prasad Sahu, Advocate
versus
RENU & ORS .....Respondents
Through: Mr. Mrinal Harsh Vardhan,
Advocate for respondents No.1 & 2
Mr. Sameer Nandwani and Mr.
Mohd. Shakim, Advocates for
respondent No.3-Insurer
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
ORDER
C.M.10095/2017 (delay) in MAC.APP. 253/2017
There is delay of 470 days in filing the accompanying appeal.
Upon hearing, I find that sufficient cause is shown to condone the
delay occasioned. The application is allowed and the delay stands
condoned.
The application is disposed of.
C.M.42866/2017 (delay) in MAC.APP.1026/2017
There is delay of 708 days in filing the accompanying appeal.
As per last order, service is complete.
Upon hearing, I find that sufficient cause is shown to condone the
delay occasioned. The application is allowed and the delay stands
condoned.
The application is disposed of.
MAC.APP. 253/2017
MAC.APP. 1026/2017 & CM 45078/2016
1. Impugned Award of 20th August, 2015 grants compensation of
`15,56,600/- with interest @ 9% p.a. to Claimants on account of death of
one Supervisor-S.K. Mishra aged 39 years in a vehicular accident on 27th
July, 2010.
2. The above-captioned first appeal is by Claimants to seek
enhancement in the quantum of compensation awarded. In the above-
captioned second appeal, the owner of vehicle in question seeks
exoneration from paying the awarded compensation. Since these two
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 order.
3. The factual background of this case, as noticed in the impugned
Award, is as under:-
"The facts, in brief, as mentioned in the petition are
that on 27.07.2010 at about 8.15 AM, the deceased Sh
Sunil Kumar Mishra and other staff of KEC International
Ltd. were going from Barabanki to their workplace
Ganauli on vehicle no. UP-43-1-0635 Bolero and when the
said vehicle reached at National Highway, Mawai
Chauraha, near the canal (within the jurisdiction of PS
Mawai), one bus bearing no. UP-42-T-5722 came from
Faridabad side which was driven by respondent no.1 in a
negligent and rash manner and at a very fast speed and
endangering the life of the persons on the road came and
hit the Bolero with great force from its right side, whereas
the Bolero was at its left side and following the traffic
rules. It is stated that in the said accident six employees of
KEC International Ltd. sustained grievous injuries. Their
names are Rajesh Kumar, Vinod Kumar, Sunil Kumar,
Anil Kumar, Mehboob Alam and Adinarayan. It is further
submitted that all the injured were removed to Sahara
Hospital, Lucknow with the help of local police and during
the treatment Sh Sunil Kumar Mishra died on 31.07.2010.
An FIR bearing no. 102/10 dated 29.07.2010 U/S
279/337/338/304A IPC was registered in PS Mawai,
Faizabad, UP. It is submitted that the accident has been
caused by rash and negligent act of respondent
no.1/driver. It is stated that at the time of the accident the
deceased Sh Sunil Kumar Mishra was working as
Supervisor with KEC International Ltd., Lucknow and
drawing consolidated salary of Rs.21650/- per month. It is
further stated that a huge amount has been spent over the
treatment of the deceased till 31.07.2010 and petitioners
have suffered great mental pain, agony, loss of love and
affection, loss of earning, loss of mental support and hence
the present petition for a compensation of Rs.80 lacs."
4. On the basis of evidence led, impugned Award has been rendered
by Motor Accident Claims Tribunal (henceforth referred to as "the
Tribunal") and the breakup of compensation awarded is as under:-
Sl. Compensation under various Amount
No. heads awarded
1 Loss of dependency ₹14,21,600/-
2 Loss of love & affection ₹50,000/-
3 Funeral expenses ₹25,000/-
4 Loss of consortium ₹50,000/-
5 Loss of estate ₹10,000/-
Total ₹15,56,600/-
5. Learned counsel for Claimants submits that the Tribunal has erred
in assessing the „loss of dependency‟ while taking the minimum wages of
a graduate. It is pointed out that as per Salary Slip (Ex.PW-2/B), the
income of deceased on the day of accident was `21,650/- per month and
so, „loss of dependency‟ ought to be calculated on its basis.
6. On behalf of owner of vehicle in question, it is submitted that as
per first „Insurance Cover Note‟ (Ex.R2W1/1), the period of insurance
was from 20th July, 2010 to 19th July, 2011. It is submitted by learned
counsel for owner that the premium in respect of first „Insurance Cover
Note‟ was paid in cash and „Insurance Cover Note‟ is itself a receipt
issued in token of the said payment. So, it is submitted that the liability to
pay the awarded compensation is of the Insurer and not of the owner of
the vehicle in question. It is submitted that the Tribunal has erred in
relying upon the second „Insurance Cover Note‟ (Ex.R3W1/2), and the
intimation of its cancellation was given to the owner on 5th September,
2010. Learned counsel for owner submits that the second „Insurance
Cover Note‟ is forged and fabricated and in view of first „Insurance
Cover Note‟, the liability is of the Insurer to pay the awarded
compensation.
7. On the contrary, learned counsel for Insurer supports the impugned
Award and submits that the compensation awarded is just and fair and so
these appeals deserve to be dismissed.
8. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that the Tribunal has erred in not relying upon the Salary
Slip (Ex.PW-2/B) of deceased, which discloses that he was earning
`21,650/- per month. The „appointment letter‟ (Ex.PW-2/A) of deceased
reveals that the nature of employment of deceased was contractual. The
annual income of deceased minus tax is `2,48,200/-. The Tribunal has
erred in making addition of 50% towards „future prospects‟ as deceased
was aged 39 years on the day of the accident and his employment was of
contractual nature. In view of Supreme Court's Constitution Bench
decision in National Insurance Company Ltd. Vs. Pranay Sethi & ors.,
(2017) 16 SCC 680, the addition towards „future prospects‟ has to be
40%. Accordingly, the „loss of dependency‟ is reassessed as under: -
`2,48,200/- p.a. X 140/100 X 15 X 3/4 = `39,09,150/-
9. As regards compensation granted under the „non pecuniary heads‟,
it needs to be brought in tune with Supreme Court's Constitution Bench
decision in Pranay Sethi (Supra). Accordingly, compensation granted by
the Tribunal under the head of „loss of love & affection‟ is disallowed.
„Funeral expenses‟ are reduced from `25,000/- to `15,000/-. However,
compensation granted under the head of „loss of estate‟ is increased from
`10,000/- to `15,000/- and compensation granted under the head of „loss
of consortium‟ is reduced from `50,000/- to `40,000/-.
10. In light of the aforesaid, the compensation payable to claimants is
reassessed as under:-
Sl. Compensation under various Amount
No. heads awarded
1 Loss of dependency ₹39,09,150/-
2 Funeral expenses ₹15,000/-
3 Loss of consortium ₹40,000/-
4 Loss of estate ₹15,000/-
Total ₹39,79,150/-
11. In the light of aforesaid, total compensation payable to claimants is
enhanced from `15,56,600/- to `39,79,150/-. The modified compensation
shall carry interest @ 9% per annum.
12. On the liability aspect, I find that the Tribunal has erred in relying
upon the second „Insurance Cover Note‟ as it does not cover the date on
which the accident in question took place. The first „Insurance Cover
Note‟ relied upon by the owner of the vehicle in question clinches the
issue. On its bare perusal, I find that this „Insurance Cover Note‟ is duly
signed by the authorized signatory and as per this „Insurance Cover
Note‟, premium was received in cash. Upon scrutiny of the evidence of
owner (R2W1), I find that there is no worthwhile cross-examination of
this witness in respect of first „Insurance Cover Note‟, which covers the
period of accident in question. The Legal Officer of the Insurer has
deposed only in respect of second „Insurance Cover Note‟ which does not
cover the period in question. The evidence in respect of first „Insurance
Cover Note‟ remains unassailable and deserves to be relied upon. The
Tribunal has erred in not doing so. Impugned Award is hereby set aside
on the liability aspect with direction that the modified compensation as
awarded by this Court shall be payable by Insurer and not the owner of
insured vehicle. The enhanced compensation be deposited by Insurer with
Registrar General of this Court within six weeks and it be disbursed to
Claimants in the ratio and manner, as indicated in the impugned Award.
13. With aforesaid directions, the above-captioned two appeals and the
pending application are disposed of.
(SUNIL GAUR)
JUDGE
AUGUST 09, 2018
s
