Delhi High Court
Reliance General Insurance Co ... vs Ass Mohammad @ Mamman & Ors. on 10 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 10, 2018
+ MAC.APP. 106/2016
RELIANCE GENERAL INSURANCE CO LTD. ..... Appellant
Through: Mr. Arun Yadav, Advocate
Versus
AFSANA & ORS. ..... Respondents
Through: Mr. S.N.Prashar & Ms.Pankaj
Kumari, Advocates
+ MAC.APP. 181/2016
RELIANCE GENERAL INSURANCE CO LTD. ..... Appellant
Through: Mr. Arun Yadav, Advocate
Versus
ASS MOHAMMAD @ MAMMAN & ORS. ..... Respondents
Through: Mr. S.N.Prashar & Ms.Pankaj
Kumari, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 18th November, 2015 grants compensation of
`15,74,876/- with interest @ 9% p.a. to legal heirs of deceased Mohd.
Yameen, aged 41 years, on account of fatal injury suffered by him in a
vehicular accident, which took place on 16th July, 2012. In this accident,
one Ass. Mohd. @ Mamman also sustained injuries and vide impugned
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Award, he has been granted compensation of `26,020/- with interest @
9% p.a.
2. In the above captioned first appeal, impugned Award is assailed on
the ground that the compensation awarded to legal heirs of deceased
Mohd. Yameen is exorbitant, whereas in the above captioned second
appeal, impugned Award is assailed on the ground that compensation
granted to injured- Ass. Mohd. is on the higher side.With the consent of
learned counsel for the parties, both the appeals have been heard together
and are being decided by this common judgment.
3. The factual background of this case, as noticed in the impugned
Award, is as under:-
"Briefly the facts of the case are that on 16/07/2012 at
about 10:15 PM both Mohd. Yameen (since deceased) and
Ass Mohammad @ Mamman were coming to their house
from Shahdara, Delhi on bicycle and when they reached in
front of house of Suresh, Chowki Nithora Khanna Nagar,
Loni, Ghaziabad, U.P. in the meanwhile a Maruti Van
bearing registration no. DL 3C AZ 3435 (VAN) which was
being driven by its driver/ respondent No.1 at a very high
speed, rashly and negligently, came from opposite side and
hit the bicycle with great force as a result of which bicycle
fell down on the road and both of them sustained grievous
injuries. They were immediately taken to GTB Hospital,
Shahdara, Delhi by police where Mohd. Yameen died during
the course of treatment on 17/07/2012 and the treatment of
MAC.APP.181/2016
Sh. Ass Mohammed was stated to be continuing as an out
door patient at the time of filing of petition. The FIR No.
634/12 u/S 279/337/338/304-A/427 IPC was also registered
at PS Loni, Distt. Ghaziabad, U.P. in this respect."
4. To render the impugned Award, learned Motor Accident Claims
Tribunal (hereinafter referred to as the "Tribunal") has relied upon
evidence of PW-1, Smt. Afsana, wife of deceased and evidence of
injured- Ass. Mohammad and other evidence. The breakup of
compensation awarded by Tribunal to legal heirs of deceased Mohd.
Yameen, is as under:-
1.) Loss of dependency : `11,49,876/-
2.) Love and affection : `2,00,000/-
3.) Loss of Consortium : `1,00,000/-
4.) Loss of Estate : `1,00,000/-
5.) Funeral expenses : `25,000/-
__________
Total : `15,74,876/-
5. The breakup of compensation awarded by Tribunal to injured- Ass.
Mohd. is as under:-
1.) Pain & Suffering : `12,000/-
2.) Special diet : `3,000/-
3.) Conveyance : `2,000/-
4.) Attendant charges : `2,000/-
5.) Loss of Income : `7,020/-
_______
Total : `26,020/-.
6. The challenge to impugned Award by learned counsel for Insurer is
MAC.APP.181/2016
on the ground that the accident in question had taken place due to
contributory negligence of deceased and the injured. In support of his
submission, counsel for Insurer has drawn attention of this Court to
evidence of injured- Ass. Mohd. (PW-2), who has categorically stated in
his cross-examination that he and deceased were under the influence of
liquor and they were driving their bicycles on the wrong side of the road.
So, it is submitted that instant case is of contributory negligence and
learned Tribunal has erred in not holding so and therefore, the
compensation granted to the legal heirs of deceased and injured ought to
be reduced. Regarding injured- Ass. Mohd., it is also the submission of
counsel for Insurer that the compensation granted is on the higher side, as
he had sustained simple injuries only. It is also submitted by counsel for
Insurer that the interest awarded by the Tribunal is also on the higher
side. Lastly, it is submitted by counsel for Insurer that in the above
captioned first appeal, 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.
7. On the contrary, learned counsel for claimants and the injured
supports the impugned Award and submits that the compensation
awarded is just and fair. Learned counsel for claimants submits that from
the site plan of the spot of accident in question, it is evident that the
negligence was of the driver of the vehicle in question and not of
deceased or injured. So, it is submitted that these appeals deserve to be
dismissed.
MAC.APP.181/2016
8. Upon hearing and on perusal of impugned Award, evidence on
record and the decision cited, I find that the Tribunal has erred in not
relying upon the cross-examination of injured- Ass. Mohd. (PW-2), who
has in no uncertain terms deposed that he and the deceased were under
the influence of liquor and they were cycling on the wrong side of the
road. Not only this, injured- Ass. Mohd. (PW-2) has also disclosed in his
cross-examination that the driver of vehicle in question was driving on
the right side. In the accident in question, Mohd. Yameen had died and
injured- Ass. Mohd. had sustained injuries, but in light of afore-referred
evidence, it is reasonable to conclude that the contributory negligence of
deceased and injured was to the extent of 50%. In the face of cross-
examination of injured- Ass. Mohd. (PW-2), there was no requirement of
leading any other evidence. Even if, the aspect of deceased and injured
being under the influence of alcohol is ignored, still the contributory
negligence of deceased and injured would be of 50%, for the reason that
they were riding their bicycles on the wrong side of the road.
9. In view of aforesaid, legal heirs of deceased Mohd. Yameen would
be entitled to 50% of the compensation granted under the head "loss of
dependency". As regards compensation granted to legal heirs of deceased
Mohd. Yameen under the „non pecuniary heads‟, it needs to be brought
in tune with Constitution Bench decision of Supreme Court in Pranay
Sethi (supra).
10. Accordingly, compensation granted by the Tribunal to legal heirs
of deceased Mohd. Yameen under the head of "loss of dependency" is
reduced by 50% from `11,49,876/- to `5,74,938/-. As regards
MAC.APP.181/2016
compensation granted under the „non pecuniary heads‟, it needs to be
brought in tune with Constitution Bench decision of Supreme Court in
Pranay Sethi (supra). Accordingly, compensation granted by the Tribunal
under the head of „loss of love & affection‟ is disallowed. Compensation
granted under the head "loss of estate" is also reduced from `1,00,000/-
to `15,000/- and compensation granted under the head "loss of
consortium" is also reduced from `1,00,000/- to `40,000/- and "funeral
expenses" are also reduced from `25,000/- to `15,000/-.
11. In light of the aforesaid, the compensation payable to legal heirs of
deceased Mohd. Yameen is reassessed as under:-
S.No. Description Amount
1. Loss of Dependency `5,74,938/-
2. Loss of Consortium `40,000/-
3. Loss of Estate `15,000/-
4. Funeral Expenses `15,000/-
Total `6,44,938/-
12. So far as compensation granted to injured- Ass. Mohd. is
concerned, this Court finds that since no compensation has been granted
on account of injuries sustained by him in the accident in question,
therefore, deduction of 50% towards contributory negligence under the
non-pecuniary heads is not to be made. Hence, the compensation granted
to injured is just and reasonable and is not required to be reduced.
13. Consequentially, the compensation payable to legal heirs of
deceased Mohd. Yameen is reduced from `15,74,876/- to `6,44,938/-. As
far as interest granted by the Tribunal is concerned, I find that a Three
Judge Bench of Supreme Court in a recent decision of Jagdish v. Mohan
MAC.APP.181/2016
and Others, (2018) 4 SCC 571 has granted interest @ 9% per annum on
the awarded compensation and so, interest @ 9% per annum is
maintained. The awarded compensation be disbursed in the ratio and
manner as indicated in the impugned Award. Likewise, compensation
granted to injured be released forthwith. Statutory deposit alongwith
excess deposit, if any, be refunded to Insurer.
14. With aforesaid directions, the above captioned two appeals are
disposed of.
(SUNIL GAUR)
JUDGE
JULY 10, 2018
r
MAC.APP.181/2016
