Delhi High Court
Icici Lombard General Insurance ... vs Nafe Singh & Ors on 10 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 10, 2018
+ MAC.APP. 719/2016 & CM 32307/2016
+ MAC.APP. 720/2016 & CM 32322/2016
+ MAC.APP. 721/2016 & CM 32324/2016
ICICI LOMBARD GENERAL INSURANCE CO LTD
..... Appellant
Through: Mr. A.K. Soni and Mr. Pavan
Kumar, Advocates
Versus
NAFE SINGH & ORS
MUNESH & ORS
KRISHAN KUMAR & ORS ..... Respondents
Through: Mr.Jatinder Kamra, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. The above-captioned three appeals relate to one vehicular accident,
which took place on 20th August, 2007 in which a self employed-Amit S/o
Nafe Singh, aged 18 years; a [email protected] Kala S/o Surat Singh,
aged 30 years and labourer-Raman S/o Krishan Kumar, aged 19 years,
had died. With the consent of learned counsel for the parties, the above-
captioned three appeals have been heard together and are being decided
by this common judgment. As per last order, service is complete. During
the pendency of these appeals, Nafe Singh, one of the legal heirs of
deceased-Amit, had died and now, the sole surviving legal heir of
deceased-Amit is his mother-Bimla Devi.
2. To render the impugned Award, the Tribunal has relied upon
evidence of Claimants/ legal heirs of deceased and other documentary
evidence on record. The compensation awarded by the Tribunal to
Claimants with interest @ 9% p.a. in these appeals, is as under:-
S.No. Name of Claimants Compensation
Awarded
1. Nafe Singh & Ors. `8,88,400/-
2. Munesh & Ors. `11,35,000/-
3. Krishan Kumar & Ors. `8,25,000/-
3. The factual background of this case, as noticed in the impugned
Award, is as under:-
"This is a claim petition U/s 163-A of The Motor
Vehicle‟s Act, 1988 filed by parents of victim Amit @ Amit
Kumar. The latter died in a vehicular accident occurred on
20.08.07 at about 22 hrs. at Katewara Mor, near
Sarvodaya Senior Secondary School, Qutabgarh, Village
Qutubgarh, Delhi. According to petitioners, on that day
i.e. 19.08.07, their son Amit @ Amit Kumar was going
somewhere alongwith his friends. They were riding a
motorcycle no. HR-26A-3840. At about 22 hrs., when they
reached near Katewara Mor, Sarvodya Senior Secondary
School, Qutab Garg, Village Qutabgarh, Delhi, they met
with an accident. Amit suffered severe injuries and died
having succumbed to those injuries.
XXXXX
.......Apart from Amit Kumar and two other persons
namely Joginder @ Kala and Raman Kumar @ Raman
reportedly died in same accident."
4. While computing the "loss of dependency", the income of
deceased-Amit was assessed by the Tribunal at `3,964/- per month, i.e.
minimum wages payable to an unskilled person, and multiplier of 14 was
applied. Deduction of 1/3rd towards "personal expenses" was made. No
addition towards "future prospects" was made by the Tribunal. The
compensation granted by the Tribunal to the legal heirs of deceased-Amit
is as under:-
1. Loss of dependency `4,44,192/-
2. Composite non-pecuniary `4,44,192/-
damages
Total `8,88,384/-
(rounded of to
₹8,88,400/-)
5. The Tribunal has assessed the income of deceased-Joginder at
`3,709/- per month while taking the minimum wages of an unskilled
person and no addition towards "future prospects" has been made. The
multiplier applied is of 17 and 1/4th towards "personal expenses" has
been deducted. The compensation granted to the legal heirs of deceased-
Joginder is as under:-
1. Loss of dependency `5,67,477/-
2. Composite non-pecuniary `5,67,477/-
damages
Total `11,34,954/-
(rounded of to
`11,35,000/-)
6. In the case of deceased-Raman, minimum wages of a matriculate
i.e. `3,964/- per month were made the basis to assess the "loss of
dependency" by the Tribunal while making no addition towards "future
prospects" and by applying multiplier of 13. Deduction of 1/3rd towards
"personal expenses" was made. The compensation granted by the
Tribunal to legal heir of deceased-Raman is as under:-
1. Loss of dependency `4,12,308/-
2. Composite non-pecuniary `4,12,308/-
damages
Total `8,24,616/-
7. Despite service, the driver and owner of the insured vehicle have
not contested before the Tribunal and this Court as well.
8. The challenge to the impugned Award by learned counsel for
appellant-Insurer is on the ground that in a petition under Section 163-A
of The Motor Vehicles Act, 1988 (hereinafter referred to as „the Act of
1988‟), the Tribunal has erred in granting composite non-pecuniary
damages equivalent to that of „loss of dependency‟ without any basis. It is
submitted that there is no justification for the Tribunal not to adhere to
Second Schedule of the Act of 1988, which provides for grant of fixed
compensation under the „non-pecuniary heads‟. It is pointed out by
Insurer's counsel that as per Second Schedule to the Act of 1988, the „loss
of dependency‟ can be assessed while taking the income of deceased at
`40,000/- per annum. It is further submitted by Insurer's counsel that as
per Second Schedule of the Act of 1988, deduction of 1/3rd towards
„personal expenses‟ has to be mandatorily made and it cannot be less or
more than this. It is also submitted that the „composite non-pecuniary
damages‟ granted by the Tribunal have to be modified to bring it in tune
with the „non-pecuniary damages‟ as provided in the Second Schedule of
the Act of 1988.
9. Learned counsel for Insurer submits that deceased-Raman was
driving the insured vehicle and since he was not a third party, therefore,
his legal heirs are not entitled to any compensation. Reliance is placed
upon Supreme Court's decision in Deepal Girishbhai Soni & Ors. v.
United India Insurance Company Ltd., Baroda, (2004) 5 SCC 385 to
submit that in a petition under Section 163-A of the Act of 1988,
compensation has to be assessed in conformity with the Second Schedule
to the Act of 1988. Thus, it is submitted that the quantum of compensation
granted by the Tribunal deserves to be suitably reduced.
10. On the contrary, counsel for respondents-Claimants supports the
impugned Award and submits that the compensation granted by the
Tribunal is just and fair and so, these appeals deserve to be dismissed.
11. Upon hearing and on perusal of impugned Award, evidence on
record and the decision cited, I find that the Tribunal has relied upon
decision of a Co-ordinate Bench of this Court in Chetan Malhotra v. Lala
Ram, 2016 SCC OnLine Del 2981 to grant composite compensation
under the „non-pecuniary heads‟. It is settled position that the statutory
enactment cannot be substituted/supplanted by the Courts. So,
compensation under the „non-pecuniary heads‟ has to be in consonance
with the Second Schedule of the Act of 1988.
12. As regards the assessment of „loss of dependency‟, I find that the
Tribunal has not adhered to the Second Schedule to the Act of 1988. It
was required to be done as the claim petitions in the instant case were
under Section 163-A of the Act of 1988. As per Second Schedule to the
Act of 1988, the maximum annual income provided therein is of
`40,000/- per annum. So, it has to be the basis of assessment of „loss of
dependency‟. So far as the application of multiplier is concerned, it has to
be as per the age of Claimants. It is so said as the Second Schedule to the
Act of 1988 clearly provides that the multiplier has to be as per the age of
victim. It is mandated by Second Schedule to the Act of 1988 that
deduction towards „personal expenses‟ has to be 1/3rd. In case of
deceased-Joginder, the Tribunal has erred in making deduction of 1/4 th
towards „personal expenses‟. Accordingly, „loss of dependency‟ in case
of deceased-Amit is reassessed as under: -
`40,000/- X 2/3 X 16 = `4,26,667/-
13. Similarly, „loss of dependency‟ in case of deceased-Joginder is
reassessed as under: -
`40,000/- X 2/3 X 18 = `4,80,000/-
14. In view of aforesaid, „non-pecuniary damages‟ payable to
Claimant-Bimla Devi, legal heir of deceased-Amit; Claimants-Munesh
and Ors. and legal heirs of deceased-Joginder, have to be assessed in
terms of Second Schedule to the Act of 1988. Accordingly, compensation
payable to Claimant-Bimla Devi, legal heir of deceased-Amit is reassessed
as under: -
1. Loss of dependency `4,26,667/-
2. Funeral expenses `2,000/-
3. Loss of estate `2,500/-
Total `4,31,167/-
15. Compensation payable to Claimants-Munesh and Ors., legal heirs
of deceased-Joginder, is reassessed as under: -
1. Loss of dependency `4,80,000/-
2. Funeral expenses `2,000/-
3. Loss of estate `2,500/-
4. Loss of consortium `5,000/-
Total `4,89,500/-
16. So far as deceased-Raman is concerned, it has to be kept in mind
that the insurance policy was not „act policy‟, but was a
„comprehensive/package insurance policy‟. Since the instant case is
under Section 163-A of the Act of 1988, therefore, the question of
negligence does not arise. Hence, legal heirs of deceased-Raman would
be entitled to compensation in terms of Second Schedule as only the use
of motor vehicle in such a case is to be seen. Accordingly, the „loss of
dependency‟ in case of deceased-Raman is reassessed as under: -
`40,000/- X 2/3 X 16 = `4,26,667/-
17. Accordingly, compensation payable to Claimant-Krishan Kumar &
Ors., legal heirs of deceased-Raman, is reassessed as under: -
1. Loss of dependency `4,26,667/-
2. Funeral expenses `2,000/-
3. Loss of estate `2,500/-
Total `4,31,167/-
18. Consequentially, the compensation awarded by the Tribunal to
legal heir of deceased-Amit is reduced from `8,88,400/- to `4,31,167/-;
compensation granted to legal heirs of deceased-Joginder is reduced from
`11,35,000/- to `4,89,500/- and compensation awarded to legal heirs of
deceased-Raman is reduced from `8,25,000/- to `4,31,167/-. 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 along with excess
deposit, if any, be refunded to appellant-Insurer.
19. With aforesaid directions, the above captioned three appeals and
the pending applications are disposed of.
(SUNIL GAUR)
JUDGE
AUGUST 10, 2018
s
