Delhi High Court
The New India Assurance Co. Ltd. vs Bibi Mariam & Ors. on 3 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 03, 2018
+ MAC.APP.75/2013
THE NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. Sameer Nandwani, Advocate
Versus
BIBI MARIAM & ORS. ..... Respondents
Through: Mr. Nikhil Tripathi, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
1. Impugned Award of 8th October, 2012 grants compensation of
`8,19,900/- with interest @ 9% p.a. to respondents-claimants on account
of death of one Mohd. Shamim Alam in a vehicular accident on 22nd July,
2009.
2. The factual background of this case, as noticed in the impugned
Award, is as under:-
"Adumbrated in brief, the facts leading to the above
stated petitions are that on 22.07.09 the deceased and the
petitioners namely Naresh and Shyama Devi were in the
grocery shop of the petitioner Dhani Ram at Kuli Camp,
Vasant Vihar. At about 7.30 PM a Tempo bearing no. DL 1L
G 6418 being driven by respondent no.1 in a manner so rash
and negligent came at a high speed and climbed on the
foothpath near the red light of Priya Cinema. It then hit the
jhuggi in which the petitioners/deceased were sitting. All of
them sustained injuries including respondent no.1. PCR Van
came on the spot and took all the injured persons to Trauma
Centre, AIIMS where their MLCs were prepared. A case was
registered vide FIR 230/09 at the police station Vasant Vihar
on the statement of Shyam Singh. Mohd. Shamim could not
survive and died on 22.07.09. His postmortem was
conducted where his cause of death was opined as Comma
due to head injury caused by blunt force possible in road
traffic accident. He was survived by his wife Bibi Mariam,
three minor sons and old aged parents, who were financially
and emotionally dependant on him. He was 38 years of age
and a Mason by profession. Shyama Devi, Dhani Ram and
Naresh sustained simple injuries.They were discharged on
the same day of accident. Due to the injuries they could not
go to their place of work for about three months. Respondent
no.2 was the owner of the Tempo and it was insured with
respondent no.3."
3. On the basis of evidence led, impugned Award has been rendered
by Motor Accident Claims Tribunal (henceforth referred to as "the
Tribunal") and the breakup of compensation awarded is as under:-
1) Loss of dependency : `7,64,900/-
2) Loss of Love & Affection : `25,000/-
3) Funeral expenses : `10,000/-
4) Loss of Estate : `10,000/-
5) Loss of Consortium : `10,000/-
========
Total : `8,19,900/-
Less (interim compensation
awarded vide order dated
29.10.2010) : `50,000/-
=========
: `7,69,900/-
=======
4. The challenge to impugned Award by learned counsel for
appellant-Insurer is on the ground that as per evidence of R1W1-Deputy
Manager of appellant-Company, driver of the insured vehicle in question
was possessing a fake driving licence. Learned counsel for appellant
submits that there is no basis to conclude that the deceased was a skilled
person and so, while calculating compensation under the head "loss of
dependency", minimum wages of unskilled person ought to have been
taken. Learned counsel for appellant-Insurer further submits that
compensation granted under the "non-pecuniary heads" ought to be
suitably reduced in light of decision of Constitution Bench of Supreme
Court in National Insurance Company Ltd. Vs. Pranay Sethi & ors.
(2017) 16 SCC 680.
5. On the contrary, learned counsel for respondents submits that
deceased was aged 38 years and so, addition towards "future prospects"
ought to be 40% in view of Supreme Court's decision in Pranay Sethi
(Supra) and that the Tribunal has rightly relied upon the evidence on
record to conclude that deceased was a skilled person. So, it is submitted
by learned counsel for respondents that this appeal deserves to be
dismissed.
6. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that apart from evidence of Deputy Manager of
appellant-Company (R1W1), there is evidence of Record Clerk, RTO
Office, Mathura, U.P. (R2W2), testifying that driving licence issued to the
driver of vehicle in question was valid. In the face of evidence of R2W2,
I find that the Tribunal has rightly relied upon it and has fastened the
liability upon appellant to pay the compensation awarded. So far as the
nature of employment of deceased is concerned, I find that there cannot
be any documentary proof regarding deceased being a Mason and so, the
Tribunal has rightly assessed the "loss of dependency" while considering
deceased to be a skilled person. Since no cross-objections have been
filed, so addition towards future prospects cannot be made in appeal by
the Insurer.
7. As regards compensation granted under the "non pecuniary
heads", it needs to be brought in tune with decision of Constitution
Bench of Supreme Court in Pranay Sethi (supra). Accordingly,
compensation granted by the Tribunal under the head of "loss of love &
affection" is disallowed. However, "funeral expenses" are increased
from `10,000/- to `15,000/-. Similarly, compensation granted under the
head "loss of estate" is also increased from `10,000/- to `15,000/- and
compensation granted under the head "loss of consortium" is also
increased from `10,000/- to `40,000/-.
8. In view of aforesaid, the compensation payable to respondents-
claimants is reassessed as under:-
S.No. Description Amount
1. Loss of Dependency `7,64,900/-
2. Loss of Consortium `40,000/-
3. Funeral Expenses `15,000/-
4. Loss of Estate `15,000/-
Total `8,34,900/-
Less (interim compensation `50,000/-
awarded vide order dated
29.10.2010)
`7,84,900/-
9. Consequentially, impugned Award is accordingly modified. The
compensation as per this judgment be deposited within four weeks by
appellant-Insurer with the learned Tribunal. The re-assessed
compensation shall carry interest @ 9% per annum and it be disbursed in
the ratio as indicated in the impugned Award. Statutory deposit, if any, be
refunded to appellant-insurer.
10. With aforesaid directions, this appeal is disposed of.
(SUNIL GAUR)
JUDGE
JULY 03, 2018
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