Delhi High Court
New India Assurance Co. Ltd. vs Ganga Baksh Singh & Anr. on 9 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 09, 2018
+ MAC.APP. 117/2013
NEW INDIA ASSURANCE CO. LTD. .... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
GANGA BAKSH SINGH & ANR. ... Respondents
Through: Mr. S.N.Parashar and Ms. Pankaj
Kumari, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 20th October, 2012 grants compensation of
`3,86,065/- with interest @ 7.5% p.a. to respondents-claimants on
account of death of one Vimlesh, aged 21 years in a vehicular accident on
27th February, 2011.
2. The factual background of this case, as noticed in the impugned
Award, is as under:-
"The brief facts, as stated by petitioner, are that on
27.02.2011 Sh. Vimlesh (the deceased) was going to sector-
20, Noida from Brahmputra Market, sector-29, Noida, by a
Theli rickshaw with his uncle and when he reached opposite
Vishwa Bharti School, sector-28, Noida, a vehicle bearing
No. DL-9C-3884, hit the rickshaw from back side. The
deceased fell down and suffered grievous injuries. It is stated
that respondent No.1 was driving the vehicle at a high speed,
rashly and negligently. It is further stated that Sh. Vimlesh
was taken to Kailash hospital and during treatment he died
on 01.03.2011. It is stated that deceased was 21 years of age
and was working as a cook and was earning Rs.8,000/- per
month."
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 estate : `2,92,383/-
2.) Loss of love & affection : `25,000/-
3.) Funeral expenses : `5,000/-
4.) Medical Expenses : `63,682/-
Total : `3,86,065/-
4. The challenge to impugned Award by learned counsel for
appellant-Insurer is on the ground that the Tribunal has ignored the
evidence of owner-cum-driver of the vehicle in question and has
erroneously held that the accident had occurred due to negligence of the
driver of vehicle in question. It is pointed out that the Tribunal has
ignored the evidence of R1W2 Bharat Porwal and Jaipal to fasten the
liability on appellant. It is next submitted by counsel for appellant-Insurer
that though the Tribunal has held that there was no loss of dependency
but still has granted compensation under the head of "loss of estate". The
submission of appellant's counsel is that compensation under the head
"loss of estate" ought to be `15,000/- in light of decision of Constitution
Bench of Supreme Court in National Insurance Company Ltd. Vs. Pranay
Sethi & ors. (2017) 16 SCC 680. Lastly, it is submitted by counsel for
appellant-Insurer that since the Registration Certificate of insured vehicle
had expired prior to the date of accident, so, liability to pay the
compensation is of the owner and driver of vehicle in question. In the
alternative, it is submitted that recovery rights be granted to appellant-
Insurer against owner and driver of vehicle in question.
5. On the contrary, learned counsel for respondent-claimant submits
that the compensation awarded is inadequate. Learned counsel for
respondent-claimant relies upon Supreme Court's decision in Ranjana
Prakash and Ors. Vs. Divisional Manager & Anr. (2011) 14 SCC 639 to
point out that even without cross-objections, the compensation granted
can be enhanced in an appeal filed by Insurer. Thus, it is submitted by
learned counsel for respondent-claimant that this appeal deserves to be
dismissed while granting suitable compensation.
6. Upon hearing and on perusal of impugned Award, evidence on
record and the decision cited, I find that the evidence of eye witness -
Shivpal Singh (PW-2) discloses that the accident had taken place due to
negligence of the driver of vehicle in question. Evidence of R1W2
Bharat Porwal and Jaipal, who were got examined by driver and owner
of vehicle in question, have been rightly discarded by the Tribunal, as the
version put-forth by them is clearly an afterthought, as it does not find
any mention in the written statement. Regarding lapse of Registration
Certificate on the date of accident, I find appellant cannot take benefit of
its own wrong, as the vehicle in question was insured by appellant despite
Registration Certificate of the vehicle having lapsed.
7. It has come in evidence that the deceased was a bachelor and the
claimant is father of deceased. Even if the claimant has not said in so
many words that he was dependent upon his son, yet it would not justify
denying of compensation to the claimant. The Tribunal has assessed the
"loss of dependency" at `11,69,532/- but has erred in not granting
compensation under this head and has rather chosen to grant partly
compensation of `2,92,383/- under the head of "loss of estate". In view
of Supreme Court's decision in Ranjana Prakash (Supra), without filing
cross-objections, in an appeal filed by Insurer, compensation cannot be
enhanced and so, reliance placed by respondent-claimant's counsel upon
decision in Ranjana Prakash (Supra) is misplaced. In the circumstances
of instant case, compensation granted by the Tribunal under the head of
"loss of estate" is treated to be one under the head of "loss of
dependency".
8. In the light of aforesaid, this Court finds that no case for reduction
of compensation is made out and in the absence of cross-objections, the
compensation granted cannot be enhanced although it deserves to be
enhanced. This appeal is accordingly dismissed. Accordingly, it is
directed to forthwith release the amount of compensation to respondent-
claimant in terms of impugned Award. Statutory deposit, if any, be
refunded to appellant.
9. With aforesaid directions, this appeal is disposed of.
(SUNIL GAUR)
JUDGE
JULY 09, 2018
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