Delhi High Court
The New India Assurance Co Ltd vs Raj Rishi & Ors. on 16 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 16, 2018
+ MAC.APP. 975/2017 & CM 40546/2017
+ MAC.APP. 978/2017 & CM 40617/2017
THE NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr. D.K. Sharma, Advocate
Versus
RAJ RISHI & ORS. .....Respondents
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 5th September, 2017 rendered by Motor
Accident Claims Tribunal (henceforth referred to as "the Tribunal")
grants compensation to respondents-Claimants, on account of death of a
Teacher-Mahender S/o Harphool, aged 59 years and 3 months, and a
housewife-Shakuntala w/o Mahender, aged 53 years, in a vehicular
accident, which took place on 17th June, 2015.
2. The factual background of this case, as noticed in the impugned
Award, is as under:-
"Mr. Mahender Singh Maurya and his wife Smt.
Shakuntala Devi (the deceased) suffered injuries in a
motor-vehicular accident that occurred on 17.06.2015
at 4.30 a.m. at NH-24, opposite Siddharth Vihar
MAC.APP. 975/2017
Colony, Vijay Nagar, Ghaziabad, Uttar Pradesh
involving Truck bearing registration No. HR 63 7731
(offending vehicle) driven allegedly rashly and
negligently by the respondent No. 1 and both died in
the consequence. In the context of the said accident,
Crime No. 657/15 under Section 279/337/348/427/304-
A of the Indian Penal Code, 1860 (IPC) was registered
in PS Vijay Nagar."
3. To render 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 legal heirs of
deceased persons (hereinafter referred to as Claimants) with interest @
9% p.a. in these appeals, is as under:-
S.No. Name of deceased Compensation
Awarded
1. Mahender Singh `41,71,000/-
2. Shakuntala `10,81,000/-
4. Since the above-captioned two appeals arise out of aforesaid
common impugned Award, therefore, 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-Mahender was assessed by the Tribunal as ₹6,61,762/- per
annum on the basis of salary record and multiplier of 9 was applied.
Deduction of 1/3rd towards "personal expenses" was made, but no
addition towards "future prospects" was made. The break-up of
compensation granted by the Tribunal to the legal heirs of deceased-
MAC.APP. 975/2017
Mahender is as under:-
1. Loss of dependency `39,71,000/-
2. Funeral Expenses and Loss of `50,000/-
Estate
3. Loss of Love & Affection `1,50,000/-
Total `41,71,000/-
6. In case of deceased-Shankuntala, minimum wages of a non-
matriculate were made the basis to assess the "loss of dependency", but
no addition towards "future prospects" was made. Multiplier of 11 was
applied and deduction of 1/3rd towards "personal expenses" was made.
The break-up of compensation granted by the Tribunal to legal heirs of
deceased-Shankuntla is as under:-
1. Loss of dependency `8,81,000/-
2. Loss of Love & Affection `1,50,000/-
3. Funeral expenses and Loss of `50,000/-
Estate
Total `10,81,000/-
7. Impugned Award is assailed by learned counsel for appellant-
Insurer by disputing involvement of the insured vehicle. Learned counsel
for Insurer submits that as per evidence of Claimant-Raj Rishi, who had
lodged the FIR regarding this accident, deceased persons and maternal
uncle of Claimant were going on motor-cycle and when they were about
to cross the road, the accident had taken place. It is pointed that the
evidence of Claimant-Raj Rishi gets demolished from the evidence of
eye-witness-Sushil Kumar (PW-2), who in his evidence, has stated that
MAC.APP. 975/2017
the motor-cycle was stationary on the side of the road and the accident
had occurred when the deceased persons were standing near the motor-
cycle. It is submitted that the aforesaid evidence gets demolished from
the Mechanical Inspection Report of the said motor-cycle, which reveals
that there was extensive damage to it. Thus, it is submitted that the
manner of taking place of this accident does not stand established and so,
Claimants are not entitled to any compensation. It is also pointed out that
the eye-witness (PW-2) could not identify the insured vehicle. So, it is
submitted on this ground also the claim petition ought to have been
dismissed.
8. Despite service, respondents have chosen not to contest these
appeals before this Court.
9. Upon hearing and on perusal of impugned Award, evidence on
record and Supreme Court's Constitution Bench decision in National
Insurance Company Ltd. Vs. Pranay Sethi & ors. (2017) 16 SCC 680, I
find that Claimant-Raj Rishi (PW-1), had lodged FIR of this case, who is
not an eye-witness, and therefore, his evidence on the aspect of
negligence of insured vehicle cannot be made the basis to discard the
otherwise reliable testimony of eye-witness (PW-2). Having scrutinized
the evidence of eye-witness (PW-2), I find that he may not have been able
to identify the insured vehicle in question, but he had given somewhat
correct description of the insured truck by calling it a „canter like
vehicle‟. It becomes crystal clear from the evidence of this witness (PW2)
and the site plan of the place of accident that the insured vehicle had not
only hit the deceased persons, who were standing on the side of the road
MAC.APP. 975/2017
near their motor-cycle which was in stationary position, but had also hit
the aforesaid motor-cycle, resulting in damage to the said motor-cycle.
10. In the face of the afore-referred evidence on record, I find that the
Tribunal has rightly concluded that the accident in question had taken
place due to rash and negligent driving of the insured vehicle. So far as
quantum of compensation granted by the Tribunal is concerned, I find
that the Tribunal has rightly assessed the "loss of dependency" in case of
both the deceased persons.
11. The compensation granted by the Tribunal under the „non
pecuniary heads‟ needs to be brought in tune with Supreme Court's
Constitution Bench decision in Pranay Sethi (supra). Accordingly,
compensation granted to legal heirs of deceased- Mahender under the
head of "loss of love & affection" is disallowed. However, "funeral
expenses" and compensation under the head "loss of estate" are reduced
from `50,000/- to `15,000/- each. Accordingly, the compensation payable
to legal heirs of deceased-Mahendra is reassessed as under:-
1. Loss of Dependency `39,71,000/-
2. Loss of Estate `15,000/-
3. Funeral Expenses `15,000/-
Total `40,01,000/-
12. So far as compensation granted by the Tribunal to legal heirs of
deceased-Shakuntala under the „non pecuniary heads‟ is concerned, 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.
MAC.APP. 975/2017
The "funeral expenses" and compensation under the head "loss of
estate" are reduced from `50,000/- to `15,000/- each Accordingly, the
compensation payable to legal heirs of deceased-Shakuntala is reassessed
as under:-
1. Loss of Dependency `8,81,000/-
2. Funeral Expenses `15,000/-
3. Loss of Estate `15,000/-
Total `9,11,000/-
13. Consequentially, the compensation awarded by the Tribunal to
legal heirs of deceased-Mahender is reduced from `41,71,000/- to
`40,01,000/- and compensation granted by the Tribunal to legal heirs of
deceased-Shakuntala is reduced from `10,81,000/- to `9,11,000/-. 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 appellant-Insurer.
14. With aforesaid directions, the above captioned appeals and the
pending applications are disposed of.
(SUNIL GAUR)
JUDGE
AUGUST 16, 2018
v
MAC.APP. 975/2017
