Delhi High Court
Iffco Tokio General Insurance Co. ... vs Mukesh Sah & Ors. on 9 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 09, 2018
+ MAC. APP. 282/2013
IFFCO TOKIO GENERAL INSURANCE CO. LTD.
.....Appellant
Through: Ms. Shantha Devi Raman,
Advocate
Versus
MUKESH SAH & ORS. .....Respondents
Through: Mr. A.K. Chaudhary, Advocate
+ MAC. APP. 283/2013
IFFCO TOKIO GENERAL INSURANCE CO. LTD.
.....Appellant
Through: Ms. Shantha Devi Raman,
Advocate
Versus
GYAN CHAND & ORS. .....Respondents
Through: Mr. A.K. Chaudhary, Advocate
+ MAC. APP. 505/2016
MUKESH SAH & ORS. ..... Appellants
Through: Mr. A.K. Chaudhary, Advocate
Versus
IFFCO TOKIO GENERAL INSURANCE CO. LTD.
.....Respondent
Through: Ms. Shantha Devi Raman,
Advocate
+ MAC. APP. 536/2016
GYAN CHAND & ORS. .....Appellants
MAC.APP. 282/2013 Page 1 of 8
MAC.APP. 283/2013
MAC.APP. 505/2016
MAC.APP. 536/2016
Through: Mr. A.K. Chaudhary, Advocate
Versus
IFFCO TOKIO GENERAL INSURANCE CO. LTD.
.....Respondent
Through: Ms. Shantha Devi Raman,
Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. The above captioned first two appeals are by Iffco Tokio General
Insurance Co. Ltd. (hereinafter referred to as the Insurer) who seeks
exoneration from paying the awarded compensation on the ground that
the driver of insured vehicle was under influence of alcohol. The
reduction in quantum of compensation is also sought by the Insurer. In
the above captioned third and fourth appeals, Claimants seek
enhancement in the quantum of compensation granted by the Tribunal.
Impugned Award of 1st December, 2012 rendered by Motor Accident
Claims Tribunal (henceforth referred to as the "Tribunal") grants
compensation to Claimants- Gyan Chand & Ors. on account of death of a
Helper- Naveen, s/o Gyan Chand, aged 20 years and to Claimants-
Mukesh Sah & Ors., on account of death of a Daily Wager- Manish, s/o
Mukesh Sah, aged 19 years, who had unfortunately died in a vehicular
accident on 10th October, 2010.
2. To render the impugned Award, the Tribunal has relied upon
MAC.APP. 283/2013
MAC.APP. 505/2016
MAC.APP. 536/2016
evidence of Claimants/ legal heirs of deceased and other documentary
evidence on record. The compensation awarded by the Tribunal with
interest @ 9% p.a. to legal heirs of deceased-Manish and Naveen in these
appeals, is as under:-
S.No. Name of Claimants Compensation
Awarded
1. Mukesh Sah & ors. `8,61,096/-
2. Gyan Chand & ors. `8,22,000/-
3. The factual background of this case, as noticed in the impugned
Award, is as under:-
"The relevant circumstances behind the claim
petitions are that on 10.10.2010 at about 1.30 AM while
deceased Naveen was plying the motorcycle, bearing
registration No.DL 7S AN-7245 (TVS) on which the other
deceased, Manish Kumar was the pillion rider and as they
were going from Chhattarpur temple to Kalkaji temple for
Darshan and had reached at outer ring road near Masjid
Moth, Nehru Place carriageway, when suddenly the
motorcycle numbered above was hit by a speeding Ford
Ikon, bearing registration No. DL 4C R-3862, being plied
by its driver, Saurav Yadav, allegedly in rash and
negligent manner. It is claimed that at the time of accident,
the speed of the offending vehicle was so high that it
forcibly hit the motorcycle as a result of which both the
deceased persons fell on the road and suffered grievous
MAC.APP. 283/2013
MAC.APP. 505/2016
MAC.APP. 536/2016
injuries. They were initially removed to Escorts Hospital,
however, the doctors referred them to Safdarjung Hospital.
Both the injured persons were thereafter taken to
Safdarjung Hospital where deceased Manish succumbed to
the injuries on 11.10.2010 and the other injured Naveen
met with fatal end on 24.10.2010."
4. Since these 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. In the case of deceased- Manish, the Tribunal has assessed the
"loss of dependency" on the basis of minimum wages of `5,278/- payable
to an unskilled labourer and has made an addition of 30% towards "future
prospects" while deducting 50% towards "personal expenses" of
deceased and the multiplier applied is of 18. The breakup of
compensation granted by the Tribunal to Claimants-Mukesh Sah & Ors.,
who are legal heirs of deceased- Manish is as under:-
1. Loss of dependency `7,41,096/-
2. Funeral Expenses `10,000/-
3. Love & Affection `1,00,000/-
4. Loss of estate `10,000/-
Total `8,61,096/-
6. In the case of Claimants- Gyan Chand & Ors., the Tribunal has
assessed the "loss of dependency" while taking the income of the
MAC.APP. 283/2013
MAC.APP. 505/2016
MAC.APP. 536/2016
deceased to be `5,000/- p.m. and has made an addition of 30% towards
future prospects and deduction of 50% towards "personal expenses" of
deceased has been made. The multiplier applied is of 18. The breakup of
compensation granted by the Tribunal to Claimants- Gyan Chand & Ors.,
i.e. legal heirs of deceased- Naveen is as under:-
1. Loss of dependency `7,02,000/-
2. Funeral Expenses `10,000/-
3. Love & Affection `1,00,000/-
4. Loss of estate `10,000/-
Total `8,22,000/-
7. In these appeals, driver and owner of the insured vehicle i.e. Ford
Ikon have not come forward to contest these appeals.
8. The challenge to the impugned Award by learned Counsel for the
Insurer is on the ground that the negligence was of the driver of the
insured vehicle, as he was intoxicated when he was driving the insured
vehicle. It is pointed out by counsel for Insurer that even the Tribunal has
noted in the impugned Award that the driver of the insured vehicle was in
an inebriated condition. Attention of this Court is drawn to evidence of
R3W1, a witness of Insurer to point out that by driving the vehicle under
the influence of alcohol, the terms and conditions of insurance policy
stand contravened and so, the Insurer is liable to be absolved from paying
the compensation to the Claimants. Attention of this Court is also drawn
to the evidence of eye witness (PW2) to point out that the driver of the
insured vehicle was drunk. In support of this submission, reliance is
MAC.APP. 283/2013
MAC.APP. 505/2016
MAC.APP. 536/2016
placed upon the evidence of R3W1.
9. On the aspect of quantum of compensation granted by the Tribunal,
it is submitted by counsel for Insurer that the compensation granted under
the non-pecuniary heads need 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. On the contrary, counsel for Claimants supports the impugned
Award and submits that these appeals deserve to be dismissed. Learned
counsel for Claimants submits that the quantum of compensation granted
is inadequate and it needs to be suitably enhanced. Enhancement of
quantum of compensation is also sought by counsel for Claimants on the
ground that deceased-Naveen was the only son of his parents and he
remained admitted in the hospital for thirteen days.
11. Upon hearing and on perusal of impugned Award, evidence on
record and the decision cited, I find that eye witness (PW-2) in his
evidence has stated that driver of the insured vehicle was drunk, as there
was smell of alcohol in his breath but he has denied the suggestion that
the driver of insured vehicle was badly drunk. Insurer's witness (R3W2)
in his cross-examination has stated that he had collected the blood sample
of driver of the insured vehicle but the percentage of alcohol present in
the blood is not mentioned in the MLC. In the face of aforesaid evidence
on record, Insurer cannot be absolved of the liability to pay the awarded
compensation to the Claimants. It is so said as the terms and conditions of
the insurance policy have not been placed on record alongwith the
MAC.APP. 283/2013
MAC.APP. 505/2016
MAC.APP. 536/2016
Insurance Policy/Cover Note (Ex. R3W1/3). Otherwise also, Insurer's
witness (R3W1) has stated in his evidence that the driver was driving the
insured vehicle with the knowledge and consent of the owner of the
insured vehicle. In any case, since the terms and conditions of the policy
of insurance in question are not on record, so there is no justification to
absolve the Insurer from its liability to pay the compensation awarded.
12. On the quantum of compensation awarded by the Tribunal, I find
that the compensation awarded to Claimants of deceased- Manish and
Naveen under the head "loss of dependency" is just and fair and no case
for enhancement is made out. The compensation granted to legal heirs of
deceased under the non-pecuniary heads has to be brought in tune with
Supreme Court's Constitution Bench decision in Pranay Seth (Supra).
Applying the dictum of Pranay Sethi (supra) to the facts of the instant
case, the compensation granted by the Tribunal to Claimants under the
head "loss of love and affection" is disallowed. However, "funeral
expenses" are increased from `10,000/- to `15,000/- and compensation
granted under the head "loss of estate" is also increased from `10,000/-
to `15,000/-. Accordingly, the compensation payable to Claimants- Gyan
Chand & Ors., on account of death of Naveen is reassessed as under:-
1. Loss of dependency `7,02,000/-
2. Funeral Expenses `15,000/-
4. Loss of estate `15,000/-
Total `7,32,000/-
13. The compensation payable to Claimants- Mukesh Sah & Ors., on
MAC.APP. 283/2013
MAC.APP. 505/2016
MAC.APP. 536/2016
account of death of Manish is reassessed as under:-
1. Loss of dependency `7,41,096/-
2. Funeral Expenses `15,000/-
4. Loss of estate `15,000/-
Total `7,71,096/-
14. Consequentially, the compensation awarded by the Tribunal to
Claimants-Gyan Chand & Ors., who are legal heir of deceased-Naveen, is
reduced from `8,22,000/-to `7,32,000/-. The compensation awarded to
Claimants- Mukesh Sah & ors., who are legal heirs of deceased- Manish
is also reduced from `8,61,096/- to `7,71,096/-. 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 alongwith excess deposit, if any,
be refunded to Insurer.
15. With aforesaid directions, the above captioned four appeals are
disposed of.
(SUNIL GAUR)
JUDGE
AUGUST 09, 2018
v
MAC.APP. 283/2013
MAC.APP. 505/2016
MAC.APP. 536/2016
