Delhi High Court
National Insurance Co Ltd vs Indu Devi & Ors. on 21 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: August 21, 2018
+ MAC.APP. 709/2016
NATIONAL INSURANCE CO LTD. ..... Appellant
Through: Ms. Seema Gulati, Advocate
Versus
INDU DEVI & ORS. ..... Respondents
Through: Mr. Anshuman Bal, Advocate for
respondents No.1 & 2
Mr. K.B.B.Singh & Mr. Vikrant
Guleria, Advocates for respondents
No.3 & 4
+ MAC.APP. 680/2016
NATIONAL INSURANCE CO LTD. ..... Appellant
Through: Ms. Seema Gulati, Advocate
Versus
DEEPAK & ORS. ..... Respondents
Through: Mr. Anshuman Bal, Advocate for
respondent No.1
Mr. K.B.B.Singh & Mr. Vikrant
Guleria, Advocates for respondents
No.2 & 3
+ MAC.APP. 677/2018
INDU DEVI & ANR. ..... Appellants
Through: Mr. Anshuman Bal, Advocate
MAC.APP. 709/2016 Page 1 of 8
MAC.APP. 680/2016
MAC.APP. 677/2018
Versus
NATIONAL INSURANCE COMPANY LTD & ORS.
..... Respondents
Through: Ms. Seema Gulati, Advocate for
respondent No.1
Mr. K.B.B.Singh & Mr. Vikrant
Guleria, Advocates for respondents
No.2 & 3
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. The above captioned three appeals pertain to one vehicular
accident, which took place on 1st September, 2010 and so, with the
consent of counsel for the parties, these appeals have been heard together
and are being disposed of by this common judgment.
2. The above captioned first and third appeals pertain to deceased-
Tinku Kumar @ Tinku. In the first captioned appeal, Insurer- National
Insurance Company Ltd. seeks reduction in the quantum of compensation
awarded, whereas in the above captioned third appeal, legal heirs of
deceased Tinku Kumar @ Tinku seek enhancement in the quantum of
compensation granted by the Motor Accident Claims Tribunal
(henceforth referred to as the "Tribunal"). In the above captioned second
appeal, Insurer seeks recovery rights against owner and driver of the
insured vehicle as also reduction in the quantum of compensation
awarded to Injured- Deepak by the Tribunal.
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3. In this unfortunate vehicular accident in question, a labourer- Tinku
Kumar @ Tinku, aged 22 years had died and the Tribunal vide impugned
Award had granted compensation of `8,00,028/- with interest @ 9% p.a.
to his legal heirs. In this accident, one-Deepak, who was pillion rider on
the insured vehicle i.e. the motor cycle, had suffered injuries and the
Tribunal had granted to him compensation of `1,80,000/- with interest @
9% per annum.
4. The factual background of this case, as noticed in the impugned
Award, is as under:-
"This is a claim petition U/s 166 and 140 of the
Motor Vehicles Act, 1988 seekign compensation of Rs.30
lakhs for the death of one Tinku @ Tinku Kumar S/o Sh.
Sita Ram. Petitioners claim themselves to be parents of
said Tinku. According to them, on 01.09.2010, their son
alongwith one Deepak was alongwith one Deepak was
going some where on a motorcycle. At about 2 p.m. when
they reached opposite Shivam Farm House near Pooth
Khurd Village, on main Bawana Road, Delhi, a tempo no.
DL-ILC-1048 came there, on being driven at very high
speed, rashly and negligently and hit their motorcycle.
Both of them fell down on road. Tinku @ Tinku Kumar
died at spot while Deepak suffered injuries. Deepak filed
a separate claim petition having suit no. 553/10. Being
offshoot of the same accident, both these petitions are
clubbed together, for the purpose of appreciation of
evidence. "
5. To render the impugned Award, the Tribunal has relied upon
evidence of Injured and Legal heirs of deceased and other documentary
evidence on record. On the strength of evidence recorded, impugned
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Award has been rendered.
6. While granting compensation to the Legal heirs of deceased- Tinku
Kumar, the Tribunal has assessed the "loss of dependency" on the basis
of minimum wages payable to an unskilled labourer and has made
addition of 50% towards "future prospects". Since deceased- Tinku
Kumar was a bachelor, so, the Tribunal has made deduction of 50%
towards "personal expenses" and on the basis of age of Legal heirs, the
multiplier of 14 has been applied. The breakup of compensation awarded
by the Tribunal to Legal heirs of deceased -Tinku Kumar is as under:-
1 Loss of dependency `6,65,028/-
2 Loss of Love & Affection `1,00,000/-
4 Funeral expenses `25,000/-
5 Loss of estate `10,000/-
Total `8,00,028/-
7. The breakup of compensation awarded by the Tribunal to Injured-
Deepak is as under:-
1. Conveyance `10,000/-
2. Special diet `20,000/-
3. Pain & suffering `1,00,000/-
4. Loss of enjoyment of life `50,000/-
Total `1,80,000/-
8. The challenge to the impugned Awards by learned counsel for
Insurer is on the ground that driving license of driver of insured vehicle
was found to be fake and so, recovery rights ought to be granted against
the driver and owner of the insured vehicle. It is submitted by counsel for
Insurer that in terms of Supreme Court's Constitution Bench decision in
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MAC.APP. 677/2018
National Insurance Company Ltd. Vs. Pranay Sethi & Ors. (2017) 16
SCC 680, addition towards future prospects in the case of deceased-
Tinku Kumar has to be 40% and not 50% and compensation granted
under the non-pecuniary heads has to be brought in line with Supreme
Court's Constitution Bench decision in Pranay Sethi (Supra). In the case
of injured- Deepak, recovery rights against owner and driver of insured
vehicle are sought by counsel for Insurer.
9. On the contrary, learned counsel for Legal heirs of deceased
submits that the quantum of compensation granted is inadequate and it
needs to be suitably enhanced. It is submitted by counsel for legal heirs
that in the case of deceased- Tinku Kumar, the Tribunal has erred in
applying the multiplier as per the age of legal heirs, whereas in view of
Supreme Court's Constitution Bench decision in National Insurance
Company Ltd. Vs. Pranay Sethi & Ors. (2017) 16 SCC 680, the
applicable multiplier has to be as per the age of deceased.
10. On behalf of owner and driver of insured vehicle, learned counsel
submits that along with Detailed Accident Report, a copy of driving
license of driver of insured vehicle is appended which reveals that driving
license in question was initially valid up to 12th June, 2009 and it was
thereafter renewed up to 11th June, 2012 and so, no case for grant of
recovery rights against driver and owner of the vehicle in question made
out. In support of his submission, Counsel for owner and driver of insured
vehicle relies upon Supreme Court's decision in Rakesh Kumar Vs.
United India Insurance Co. Ltd. & ors. 2016 ACJ 2157.
11. Upon hearing and on perusal of impugned Award, evidence on
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MAC.APP. 677/2018
record and the decisions cited, I find that evidence of R3W2, an official
from the concerned Regional Transport Authority regarding driving
license in question being not issued by the said Authority, remains
unchallenged. Even if the driving license in question was renewed up to
the year 2012 but that by itself would not justify putting liability on the
Insurer to pay the awarded compensation, as the concerned licensing
authority has given a report that the driving license in question had not
been issued by the said licensing authority. Since the aforesaid evidence
remains unchallenged, therefore, the Tribunal has erred in not granting
recovery rights to Insurer. Reliance placed by counsel for owner and
driver of insured vehicle upon decision in Rakesh Kumar (supra), is
misplaced as in the said decision, there was no evidence regarding driving
license being fake and invalid, whereas in the instant case there is
unchallenged evidence of R3W2, official from concerned licensing
authority which reveals that driving license relied upon was not issued by
the said Authority.
12. As regards quantum of compensation granted by the Tribunal to
the legal heirs of deceased- Tinku Kumar is concerned, I find that the
Tribunal has assessed the income of deceased at `5,278/- per month and
has made addition of 50% towards "future prospects", as deceased was
aged 22 years on the day of accident, whereas in the light of Supreme
Court's Constitution Bench decision in Pranay Sethi (Supra) addition
towards "future prospects" has to be 40% and not 50% and the age of
deceased should be the basis for applying the appropriate multiplier. So,
in the instant case, multiplier of 18 is applied as the deceased was aged 22
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years on the day of the accident. Since the deceased was unmarried,
deduction of one half towards "personal expenses" has to be made.
Accordingly, the "loss of dependency" is reassessed as under:-
`5,278/- X 140/100 X 50/100 X 18 X 12= `7,98,033/-
(rounded off to `7,98,000)/-
13. 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 by the Tribunal to legal heirs of deceased-Tinku
Kumar under the head of „loss of love & affection‟ is disallowed. The
„funeral expenses‟ are reduced from `25,000/- to `15,000/-.
Compensation granted under the head „loss of estate‟ is however
enhanced from `10,000/- to `15,000/-. Consequentially, the
compensation payable to legal heirs of deceased-Tinku Kumar is
reassessed as under:-
1 Loss of dependency `7,98,000/-
2 Funeral expenses `15,000/-
5 Loss of estate `15,000/-
Total `8,28,000/-
14. In the light of aforesaid, total compensation payable to Legal heirs
of deceased is enhanced from `8,00,028/- to `8,28,000/-. The modified
compensation shall carry interest @ 9% per annum. The enhanced
compensation alongwith interest be deposited within six weeks by Insurer
and thereafter, it be disbursed to legal heirs of deceased- Tinku Kumar in
the ratio and manner, as indicated in the impugned Award.
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15. So far as quantum of compensation granted to injured- Deepak is
concerned, I find that the evidence on record justifies the quantum of
compensation granted to him and no case for reduction is made out. The
compensation awarded by the Tribunal be released to Injured -Deepak
forthwith, if already not done.
16. With aforesaid modification in the impugned Award, the above
captioned three appeals are disposed of. Statutory deposit, if any, be
refunded to Insurer.
(SUNIL GAUR)
JUDGE
AUGUST 21, 2018
r
MAC.APP. 680/2016
MAC.APP. 677/2018
