Delhi High Court
Fakir Chand Pal & Anr. vs Rajinder Singh & Ors. on 20 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Judgment: August 20, 2018
+ MAC.APP. 173/2013
THE NEW INDIA ASSURANCE CO. LTD.
..... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
FAKIR CHAND PAL & ORS. ..... Respondents
Through: Mr. Aditya Sharda, Advocate
+ MAC.APP. 300/2013
FAKIR CHAND PAL & ANR.
..... Appellant
Through: Nemo
Versus
RAJINDER SINGH & ORS. .....Respondents
Through: Mr. Pankaj Seth and Mr. Aditya,
Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. The above captioned two appeals are directed against Award of 26th
November, 2012 vide which compensation of ₹6,04,320/- with interest @
7.5% per annum has been awarded to Claimants. In the above captioned
first appeal, the Insurer seeks exoneration on the ground of lack of
negligence on the part of driver of Insured vehicle and reduction of quantum
of compensation granted, whereas in the above captioned second appeal,
MAC. APP. 173/2013
enhancement of compensation is sought by Claimants. Since these two
appeals arise out of Award of 26th November, 2012, therefore, both these
appeals have been heard together and are being decided by this common
judgment. The facts as noted in opening paragraphs of the impugned Award
are as under:-
"Briefly stating the facts, as stated by the petitioner,
are that on 22.05.2008 Sh. Pawan Kumar (the deceased)
and Sh. Fakir Chand Pal/ petitioner No. 1, were returning
to their home form their place of work i.e. National Defence
College (Ministry of Defence) and Sh. Pawan Kumar was
travelling in the bus bearing No. DL-1PA-2694 (Blue Line),
driven by the respondent No. 1 rashly and negligently and
when Sh. Pawan Kumar was deboarding, he fell down on
road and came under rear wheel of the offending bus
because of the rash and negligent driving of respondent No.
1. Sh. Pawan Kumar suffered serious injuries and was taken
to Guru Teg Bahadur Hospital, Shahdra, Delhi, where Sh.
Pawan Kumar was treated and after some time doctor
declared him dead. It is stated that driver/respondent No. 1
was caught by the constable. It is also stated that Sh. Pawan
Kumar was having diploma in automobile and was working
as a motor mechanic cum driver in National Defence
college (Ministry of Defence), Delhi, and was earning near
about 10,000/- per month. It is stated that deceased was
looking after the entire family and was having one
MAC. APP. 173/2013
unmarried sister and younger brother and was helping his
old aged parents and was giving Rs. 8000/- per month to the
petitioner No. 1 & 2"
2. The Motor Accident Claims Tribunal (hereinafter referred to as 'the
Tribunal') has relied upon the evidence of parents of Pawan who had died in
a vehicular accident on 22nd May, 2008. The Tribunal has also relied upon
the evidence of parents of deceased and the other evidence on record to
award the compensation as referred to above. Pawan was aged 30 years on
the day of this vehicular accident and as per the evidence of deceased's
father (PW-1), deceased was working as temporary private employee and
was earning ₹4,100/- per month. It is matter of record that the aforesaid
evidence remains unchallenged. The Tribunal has calculated the loss of
dependency by adding 30% towards future prospects and since deceased
was married and so one-third has been deducted towards the personal
expenses of the deceased and by applying the multiplier of 13, the loss of
dependency has been assessed at ₹5,54,320/-. Compensation of ₹25,000/-
has been awarded under the head of „Loss of love and affection' and
'Funeral Expenses' of `5,000/- have been granted by the Tribunal. Under
the head 'Loss of Estate' `10,000/- has been granted. The break-up of
compensation awarded by the Tribunal is as under:-
1) Loss of Dependency = Rs.5,54,320 /-
2) Loss of Love and Affection = Rs.25,000/-
3) Funeral Expenses = Rs.5,000/-
4) Loss of Estate = Rs.10,000/-
5) Loss of Consortium = Rs.10,000/-
____________
Total = Rs.6,04,320 /-
MAC. APP. 173/2013
3. The challenge to impugned Award by learned counsel for The New
India Assurance Co. Ltd. (hereinafter referred to as-Insurer) is on the
ground that negligence on the part of driver of insured vehicle does not stand
proved. It is pointed out that there is no documentary evidence on record
regarding income of the deceased and no addition towards future prospects
ought to have been made. It is submitted by Insurer's counsel that deduction
of personal expenses of deceased ought to have been 50% as the widow of
deceased had remarried after about one year of the accident and that in view
of Supreme Court's Constitution Bench decision in National Insurance Co.
Ltd. Vs. Pranay Sethi & Ors. (2017) 16 SCC 680, no compensation under
the head of 'love and affection' is to be granted. So, modification of the
impugned Award is sought.
4. On the contrary, learned counsel for the widow of the deceased
refutes the aforesaid stand taken on behalf of Insurer and supports the
impugned Award. However, there is no Representation on behalf of the
Claimants despite being intimated about the pendency of this appeal.
5. Upon hearing and on perusal of impugned award, evidence on record
and the Supreme Court's Constitution Bench decision in Pranay Sethi
(supra), I find that deceased with his father was travelling in the Insured Bus
when this accident had taken place. The father (PW-1) of the deceased is an
eye-witness of this accident. I have scrutinized the evidence of father-Fakir
Chand (PW-1) and I find there is nothing worthwhile in his cross-
examination to demolish his version regarding the manner of taking place of
this accident. This witness has clearly stated that the accident in question
MAC. APP. 173/2013
had taken place due to rash and negligent driving by driver of the Insured
Bus. So, the Insurer cannot be absolved of the liability to pay the
compensation. The Tribunal has rightly taken income of the deceased at
₹4,100/- per month in face of evidence of Bhim Rao (PW-5) who has clearly
stated in his evidence that the deceased was drawing salary of ₹4,100/- per
month and his evidence remains unchallenged. While taking the income of
deceased at ₹4,100/- per month, addition towards "future prospects" has to
be 40% in view of Supreme Court's decision in Pranay Sethi (Supra). The
Tribunal has erred in making addition of 30% towards "future prospects".
Such a course is adopted though counsel for the claimants has not come
forward to seek enhancement of compensation, as it is the solemn duty of
this Court to award just and fair compensation. Deduction of 50% towards
"personal expenses" sought by the Insurer's counsel is not justified as the
widow of the deceased had remarried after about one year. The Tribunal has
rightly made deduction of one-third towards "personal expenses". The
Tribunal has erred in adopting the multiplier of 13 while taking into
consideration the age of the claimants. In light of Supreme Court's decision
in Pranay Sethi (supra), and the facts of the instant case, multiplier of 17 is
applied as per the age of deceased. In view of above the "loss of
dependency" is reassessed as under:
₹4,100 X 12 X 140/100 X 17 X 2/3 = ₹7,80,640/-
6. The compensation granted by Tribunal under the non-pecuniary heads
needs to be brought in tune with the decision in Pranay Sethi (supra) and so,
the compensation of `25,000/- granted by the Tribunal under the head of
'Loss of Love and Affection' is disallowed. However, the compensation
MAC. APP. 173/2013
granted under the head of "loss of estate" is increased from ₹10,000/- to
₹15,000/- and "funeral expenses" are also increased from ₹5,000/- to
₹15,000/-. Accordingly, the compensation payable to the Claimants is re-
assessed as under:-
1. Loss of dependency: ₹7,80,640/-
2. Loss of estate ₹15,000/-
3. Funeral Expenses ₹15,000/-
4. Loss of Consortium ₹10,000/-
__________
Total compensation: ₹8,20,640/-
7. In light of the aforesaid, compensation of `6,04,320/- granted by the
Tribunal, is enhanced to `8,20,640/-. A Three Judge Bench of Supreme
Court in a recent decision of Jagdish v. Mohan and Others, (2018) 4 SCC
571 has granted interest @ 9% per annum on the awarded compensation and
so, claimants are also entitled to interest @ 9% per annum. Registry is
directed to refund the statutory deposit as per rules subject to deposit of
enhanced compensation by the Insurer and thereafter, the compensation be
released to the Claimants in terms of this judgment but in the same ratio and
manner as indicated by the Tribunal in the impugned Award.
8. With aforesaid directions, both the appeals are accordingly disposed
of.
(SUNIL GAUR)
JUDGE
AUGUST 20, 2018
s/v
MAC. APP. 173/2013
