Delhi High Court
Universal Sompo Gen Ins Co Ltd. vs Ranu Mohaptra & Ors. on 20 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 20, 2018
+ MAC.APP. 993/2016
UNIVERSAL SOMPO GEN INS CO LTD. ..... Appellant
Through: Mr. Mohd. Mustafa, Advocate
Versus
RANU MOHAPTRA & ORS. ..... Respondents
Through: Mr. Navneet Goyal, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 23rd August, 2016 grants compensation of
`31,16,360/- with interest @ 9% p.a. to Claimants on account of death of
one Prasanta Mahapatra, aged 33 years, in a vehicular accident on 13th
September, 2015.
2. The factual background of this case, as noticed in the impugned
Award, is as under:-
"Vide this judgment, I shall dispose of DAR filed with
respect to the claim of the petitioners on account of the death
of Mr.Prasanta Mahapatra, S/o Sh. Bipin, aged 33 Years
occurred in accident dated 13.09.2015 at about 1:00 AM, at
opposite IIT Hostel R K Puram Sector 3 Sports Ground, New
Delhi. In respect of this accident, an FIR bearing no.929/15,
U/S 279/304A of IPC was registered in PS Safdarjung
Enclave, New Delhi."
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 : `38,88,000/-
2.) Loss of Love and Affection : `1,00,000/-
3.) Funeral expenses : `25,000/-
4.) Loss of Estate : `10,000/-
5.) Loss of Consortium : `1,00,000/-
_________
Total : `41,23,000/-
Less: Amount paid under W.C.Act : `8,06,640/-
`33,16,360/-
Less: Ex gratia amount paid by DMRC : `2,00,000/-
Total : `31,16,360/-
=========
4. The challenge to impugned Award by learned counsel for
appellant-Insurer is on the ground that Claimants have already received
compensation under the Employees' Compensation Act, 1923 and so, in
view of Section 167 of the Motor Vehicles Act, 1988, the claimants are
barred from claiming compensation under the Motor Vehicles Act, 1988.
It is submitted that the Tribunal has concluded that deceased was a daily
wager and was drawing different wages in different months and the
Tribunal has erred in taking the income of deceased at `18,000/- p.m. on
average basis. It is pointed out that as per the wage slips of the deceased,
the average wage of deceased would be `15,759/- and not `18,000/-. It is
submitted that the Tribunal has erred in making addition of 50% towards
"future prospects" and in view of Supreme Court's Constitution Bench
decision in National Insurance Company Ltd. Vs. Pranay Sethi & ors.
(2017) 16 SCC 680, addition of 40% towards "future prospects" is to be
made. Lastly, it is submitted by Counsel for Insurer that compensation
granted under the "non-pecuniary heads" ought to be suitably reduced in
light of Supreme Court's decision in Pranay Sethi (Supra).
5. On the contrary, learned counsel for Claimants supports the
impugned Award and submits that the compensation awarded is just and
fair. So, it is submitted by learned counsel for Claimants that this appeal
deserves to be dismissed.
6. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that Section 167 of The Motor Vehicles Act, 1988
provides that compensation under this Act and under Employees‟
Compensation Act, 1923 cannot be simultaneously claimed by the
Claimants. In the impugned Award, compensation awarded under the
Employees‟ Compensation Act, 1923 has been set off against
compensation granted under the Motor Vehicles Act, 1988. So, it cannot
be said that the claim petition is barred.
7. So far income of deceased is concerned, I find on perusal of wage
slips (Ex. PW3/B colly), that the Tribunal has rightly assessed wages of
deceased at `18,000/- on average basis. In light of Supreme Court's
decision in Pranay Sethi (Supra), addition towards „future prospects‟
ought to be 40% and not 50% as awarded by the Tribunal.
8. In view of aforesaid, "loss of dependency" is reassessed as under:-
`18,000/- X 12 X 16 X 3/4 X 140/100 = `36,28,800/-
9. As regards 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. The "funeral expenses" are reduced from `25,000/- to
`15,000/-. Similarly, compensation granted under the head "loss of
consortium" is also reduced from `1,00,000/- to `40,000/-. However,
compensation granted under the head "loss of estate" is increased from
`10,000/- to `15,000/-.
10. Accordingly, the compensation payable to Claimants is reassessed
as under:-
S.No. Description Amount
1. Loss of Dependency `36,28,800/-
2. Loss of Consortium `40,000/-
3. Funeral Expenses `15,000/-
4. Loss of Estate `15,000/-
Total `36,98,800/-
Less: Amount paid under `8,06,640/-
W.C.Act
Less: Ex gratia amount paid by `2,00,000/-
DMRC
Total `26,92,160/-
11. Consequentially, the compensation amount payable stands reduced
from `31,16,360/- to `26,92,160/-. 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, interest @ 9% per annum granted in the instant case is
maintained. The modified compensation be released forthwith to
Claimants in the manner and ratio indicated in the impugned Award.
Statutory deposit along with excess deposit be refunded to Insurer.
12. With aforesaid directions, this appeal is disposed of.
(SUNIL GAUR)
JUDGE
JULY 20, 2018
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