Delhi High Court
Icici Lombard General Insurance ... vs Prabhabati Devi & Ors. on 10 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August, 10, 2018
+ MAC.APP. 738/2017 & C.M. No. 29703/2017
ICICI LOMBARD GENERAL INSURANCE
CO LTD ..... Appellant
Through: Mr. Navneet Kumar, Advocate
versus
PRABHABATI DEVI & ORS. .....Respondents
Through: Mr. Anshuman Bal, Advocate
+ MAC.APP. 449/2018
PRABHABATI DEVI & ORS. .....Appellants
Through: Mr. Anshuman Bal, Advocate
versus
ICICI LOMBARD GEN INSURANCE
CO LTD & ORS .....Respondents
Through: Mr. Navneet Kumar, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. The above-captioned two cross appeals are directed against
impugned Award of 19th April, 2017 vide which compensation of
₹31,03,624/- with interest @ 9% per annum has been awarded to
Claimants on account of death of a bank peon/attendant-Chander Kumar,
aged 55 years. The above-captioned first appeal is by the Insurer to seek
exoneration from paying compensation granted, whereas in the above-
captioned second appeal, Claimants seek enhancement in the quantum of
compensation granted by the Tribunal. Since these two appeals arise out
of common Award, therefore, both the appeals have been heard together
and are being decided by this common judgment.
2. The factual background of this case, as noticed in the impugned
Award, is as under:-
"Brief facts of the case are that on 17.10.2015 at
about 10.00 AM, deceased alongwith Damanpreet Singh,
Anish Sharma, Rahul and Vaibhav were going in car
bearing registration No. DL-6CN-4727 which was driven
by respondent No. 1 in a rash and negligent manner.
When the car reached on GT Road Jalwehra Village,
National Highway, it hit against a truck from behind due
to high speed. After the accident, occupants of car were
taken to hospital. Deceased Chander Kumar @ Chander
Kumar Upadhyay was taken to PGI, Chandigarh where
he died on the date of accident itself."
3. The Motor Accident Claims Tribunal (hereinafter referred to as
„the Tribunal‟) has calculated the loss of dependency while taking income
of deceased at ₹28,973.40/- (rounded off to ₹28,975/-). No addition
towards „future prospects‟ has been made and one-fourth has been
deducted towards the „personal expenses‟ of deceased and by applying
the multiplier of 11, the „loss of dependency‟ has been assessed at
₹28,68,624/-. Compensation of ₹1,00,000/- has been awarded under the
head of „Love and Affection‟ and „Funeral Expenses‟ of ₹25,000/- have
been granted by the Tribunal. Under the head „Loss of Estate‟
compensation of ₹10,000/- has been granted. The break-up of
compensation awarded by the Tribunal is as under:-
Loss of dependency : `28,68,624 /-
Loss of love and affection : ₹1,00,000/-
Funeral expenses : `25,000/-
Loss of Estate : `10,000/-
Loss of Consortium : ₹1,00,000/-
Total : `31,03,624/-
4. The challenge to impugned Award by learned counsel for Insurer is
on the ground that negligence of driver of the insured vehicle does not
stand proved. So, it is submitted that the claim petition of Claimants
ought to be dismissed.
5. On the contrary, learned counsel for Claimants supports the
impugned Award and submits that the compensation granted by the
Tribunal is inadequate and it needs to be suitably enhanced in view of
Salary Slip (Ex. PW2/1). It is further submitted that addition towards
"future prospects" has to be 15% in view of Supreme Court's
Constitution Bench decision in National Insurance Company Ltd. Vs.
Pranay Sethi & Ors. 2017 SCC OnLine SC 1270. So, it is submitted that
the compensation granted by the Tribunal ought to be reasonably
enhanced.
6. Upon hearing and on perusal of impugned Award and the evidence
on record and the decision cited, I find that this fatal accident was
witnessed by Raju (PW-3), who in his evidence has not exactly stated as
to how the accident took place. There is one line cross-examination of
this witness (PW-3) regarding his not knowing anything about the
accident. During the course of hearing, Insurer's counsel has sought to
place reliance upon the copy of the FIR to point out that the offending
vehicle i.e. truck had hit the insured car from the side, which resulted in
happening of this accident.
7. On the negligence aspect, I find that FIR of this case was registered
on the basis of the statement of the deceased and its perusal clearly
reveals that the negligence was of the truck driver and not the driver of
insured vehicle in question. There is nothing on record to controvert the
contents of the FIR, whose authenticated copy is on record and so, there
is no basis to absolve the Insurer from the liability to pay the awarded
compensation. However, I find that the "non pecuniary damages"
awarded to the legal heirs of the deceased has to be in consonance with
Supreme Court's Constitution Bench decision in Pranay Sethi (Supra).
In the considered opinion of this Court, the Tribunal has erroneously
computed the income of deceased on the basis of Basic Pay, HRA and
DA. However, deduction of one-fourth towards personal expenses is
rightly made by the Tribunal. Since the deceased was aged about 55
years, therefore, addition towards „future prospects‟ has to be 15%. In
view of Supreme Court's Constitution Bench decision in Pranay Sethi
(Supra), the Tribunal has erred in not granting it. The deceased was a
regular employee of Syndicate Bank and as per Salary Slip (Ex. PW2/1),
his gross salary was ₹36,689.20/- (rounded of to ₹36,690/-). In view of
Supreme Court's Constitution Bench decision in Pranay Sethi (Supra),
the actual salary should be read as actual salary less tax. As per relevant
ITR (Ex. PW1/1 colly.), no tax was payable on the income of deceased.
Accordingly, the "loss of dependency" is reassessed as under:
₹36,690/- X 12 X 3/4 X 11 X 115/100 = ₹41,77,156/-
8. 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 and affection" is
disallowed. "Funeral expenses" are reduced from ₹25,000/- to ₹15,000/-.
However, compensation granted under the head "loss of estate" is
increased from ₹10,000/- to ₹15,000/- whereas compensation granted
under the head "loss of consortium" is reduced form ₹1,00,000/- to
₹40,000/-. In view thereof, compensation payable to legal heirs of
deceased-Chander Kumar is reassessed as under: -
Loss of dependency : ₹41,77,156/-
Funeral expenses : ₹15,000/-
Loss of Estate : ₹15,000/-
Loss of Consortium : ₹40,000/-
Total : ₹42,47,156/-
9. In light of the aforesaid, compensation of ₹31,03,624/- granted by
the Tribunal, is enhanced to ₹42,47,156/-, which shall carry interest @
9% per annum. Registry is directed to refund the statutory deposit, if
any, subject to Insurer depositing enhanced compensation with the
Registrar General of this Court within six weeks and thereafter, the
modified compensation be released to the Claimants in terms of the
judgment, but in the same ratio and manner as indicated by the Tribunal
in the impugned Award.
10. With aforesaid directions, both the appeals and the pending
application are accordingly disposed of.
(SUNIL GAUR)
JUDGE
AUGUST 10, 2018
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