Delhi High Court
Bajaj Allianz General Insurance ... vs Pappu & Ors. on 24 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 24, 2018
(i) + MAC.APP. 946/2016
BAJAJ ALLIANZ GENERAL INSURANCE CO LTD
..... Appellant
Through: Mr. M.P. Sahi, Advocate
Versus
PAPPU & ORS. ..... Respondents
Through: Mr. Mukesh Kumar Sinha,
Advocate for respondents No.1 & 2
Mr. Bhupinder Narula, Advocate for
respondents-Claimants
(ii) + MAC.APP. 948/2016
BAJAJ ALLIANZ GENERAL INSURANCE CO LTD.
..... Appellant
Through: Mr. M.P.Sahi, Advocate
Versus
PAPPU & ORS. ..... Respondents
Through: Mr. Mukesh Kumar Sinha,
Advocate for respondents No.1 & 2
Mr. Bhupinder Narula, Advocate for
respondent-Injured
(iii) + MAC.APP. 949/2016
BAJAJ ALLIANZ GENERAL INSURANCE CO LTD.
..... Appellant
Through: Mr. M.P.Sahi, Advocate
MAC.APP. 946/2016 Page 1 of 12
MAC.APP.948/2016
MAC.APP. 949/2016
MAC.APP. 950/2016
Versus
PAPPU & ORS. ..... Respondents
Through: Mr. Mukesh Kumar Sinha,
Advocate for respondents No.1 & 2
Mr. Bhupinder Narula, Advocate for
respondent-Injured
(iv) + MAC.APP. 950/2016
BAJAJ ALLIANZ GENERAL INSURANCE CO LTD.
..... Appellant
Through: Mr. M.P.Sahi, Advocate
Versus
PAPPU & ORS. ..... Respondents
Through: Mr. Mukesh Kumar Sinha,
Advocate for respondents No.1 & 2
Mr. Bhupinder Narula, Advocate for
respondents-Claimants
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
C.M.No. 42285/2016 (u/S 151 CPC) in MAC.APP. 946/2016
C.M.No.42362/2016 (u/S 151 CPC) in MAC.APP. 948/2016
C.M.No.42365/2016 (u/S 151 CPC) in MAC.APP. 949/2018
C.M.No. 42367/2016 (u/S 151 CPC) in MAC.APP. 950/2016
MAC.APP.948/2016
MAC.APP. 949/2016
MAC.APP. 950/2016
There is delay of 37 days in filing the accompanying appeals.
The reasons stated in the applications provide sufficient cause to
condone the delay occasioned. The applications are allowed and delay is
condoned.
The above captioned four applications are disposed of.
C.M.No. 44345/2016 (u/Order 6 Rule 17 CPC) in MAC.APP.
946/2016
By way of this application, name of Smt. Saraswati Devi, mother
of deceased, is sought to be added in the Memo of Parties on the plea that
due to inadvertence, her name was left out although her name finds
mention in the modified Award. Counsel for appellant has handed over
certified copy of order of 8th June, 2017 of Motor Accident Claims
Tribunal, which reveals that name of Smt. Saraswati Devi, has been
added as a party to the claim petition and upon apportionment, part of the
compensation amount has been awarded to her.
In view of above, the application is allowed and Amended Memo
of Parties and Amended Appeal of 23rd November, 2017 filed alongwith
this application is taken on record.
The application is disposed of.
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MAC.APP. 948/2016
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MAC.APP. 950/2016
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MAC.APP. 950/2016
1. In the above captioned four appeals, the challenge is to the
impugned Award of 4th July, 2016 passed by Motor Accident Claims
Tribunal (henceforth referred to as the "Tribunal") pertaining to a
vehicular accident which took place on 28th March, 2012. Since these
appeals arise out of a common impugned Award, therefore, with the
consent of learned counsel for the parties, these appeals have been heard
together and are being decided by this common judgment.
2. The factual background of this case, as noticed in the impugned
Award, is as under:-
"The relevant facts for the disposal of these cases
are that on 28/03/2012, Umesh Chandra Singh, Smt.
Jamuna Pal, Smt. Pushpa Badwal and Sh. Hukam Singh
Badwal were travelling in Taxi bearing no. DL-1YC-4700
which was being driven by Sh. Pappu, respondent no.1 in
rash and negligent manner. But when they requested Sh.
Pappu, respondent no.1 to drive carefully he did not pay
any heed and kept on driving the Taxi in rash and
negligent manner. When they reached near Mulya Village,
Devprayag, Uttranchal, suddenly Respondent no.1/Sh.
Pappu, lost control over the said taxi and fell into the
gorge and as a result of the accident Sh. Umesh Chandra
Singh and Smt. Pushpa Badwal sustained grievous injuries
whereas Smt. Jamuna Pal and Sh. Hukam Singh Badwal
sustained fatal injuries".
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3. To render the impugned Award, the Tribunal has relied upon
evidence of Injured- Umesh Chandra and Pushpa Badwal and Claimants
(legal heirs of deceased Jamuna Pal & Hukam Singh Badwal) and other
documentary evidence on record.
4. In the above captioned first appeal [MAC.APP. 946/2016 (arisen
from case No.326/12/14)], the Tribunal has awarded compensation of
`78,15,032/- with interest @ 10% p.a. to legal heirs of deceased-Hukam
Singh¸ who was aged 50 years on the day of the accident and was
working as ACS in the Office of Additional Commissioner of Custom,
IGI Airport, New Delhi. However, the Tribunal vide order of 8th June,
2017, has corrected the impugned Award and granted compensation of
`87,88,786/- with interest @ 10% p.a. to legal heirs of deceased-Hukam
Singh and the breakup of compensation awarded is as under:-
Loss of dependency `83,13,786/-
Loss of love and affection to `2,00,000/-
Children
For Funeral Expenses `25,000/-
Loss of estate `1,00,000/-
Loss of consortium `1,00,000/--
Loss of love and affection `50,000/-
towards parents
Total `87,88,786/-
5. In the above captioned second appeal [MAC.APP. 948/2016
(arisen from case No.327/12/14)], the Tribunal has awarded
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compensation of `86,336/- to Injured-Pushpa Badwal, a house wife, who
had sustained grievous head injuries in this accident, while taking her
income on minimum wages payable to a matriculate as on the date of
accident. However, the Tribunal vide order of 8th June, 2017, has
corrected the impugned Award and granted compensation of `96,336/-
with interest @ 10% p.a. to Injured-Pushpa Badwal. The breakup of
compensation awarded to her is as under:-
Loss of income `24,336/-
Pain & Suffering `30,000/-
Conveyance and special diet ` 30,000/-
Attendant charges `12,000/-
Total `96,336/-
6. In the above captioned third appeal, [MAC.APP. 949/2016 (arisen
from case No.325/12/14)], the Tribunal has awarded compensation of
`1,80,000/- with interest @ 10% p.a. to Injured- Umesh Chandra Singh,
who was working in Northern Eastern Railways and had sustained
grievous head injuries. The breakup of compensation awarded to him is
as under:-
Loss of income `1,08,000/-
Pain & Suffering `30,000/-
Conveyance and special diet `30,000/-
Attendant charges `12,000/-
Total `1,80,000/-
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7. In the above captioned fourth appeal [MAC.APP. 950/2016 (arisen
from case No.324/12/14)], the Tribunal has awarded compensation of
`14,52,108/- with interest @ 10% p.a. to legal heirs of deceased Jamuna,
aged 28 years, a house wife, while taking her income at `7,358/-p.m. i.e.
the minimum wages payable to a non-matriculate on the day of accident.
The breakup of compensation awarded to legal heirs of deceased Jamuna
is as under:-
Loss of dependency `9,27,108/-
Loss of love and affection to `3,00,000/-
Children
For Funeral Expenses ` 25,000/-
Loss of estate ` 1,00,000/-
Loss of consortium `1,00,000/-
Total `14,52,108/-
8. Learned counsel for appellant (hereinafter referred to as Insurer)
challenges the impugned Award on the ground that the compensation
granted to Claimants in the above captioned first appeal is on the higher
side, as gross salary of deceased Hukam Singh has been taken by the
Tribunal at `6,55,920/- per annum, whereas his net salary of `4,90,000/-
ought to have been taken into consideration while assessing "loss of
dependency". Counsel for Insurer submits that deduction of 10% ought to
have been made from the salary of deceased towards income tax and
since deceased was of 50 years of age, the applicable multiplier is of 11
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and not 13. On the aspect of negligence, counsel for Insurer submits that
no charge-sheet was filed against driver of the offending vehicle and so,
finding of negligence returned against the driver of insured vehicle is
unjustified.
9. Counsel for Insurer points out that as per evidence of Amit Rastogi
(R3W1), Clerk, Licensing Authority, Farukhabad, UP, the driving license
of the insured vehicle was fake and so, no liability can be fastened upon
the Insurer to pay the awarded compensation. It is also pointed out by
counsel for Insurer that there is no endorsement on the driving license
permitting driving in a hilly area. So, modification of impugned Award is
sought by counsel for Insurer.
10. On the other hand, counsel for respondent-Claimants and Injured
supports the impugned Award and submits that while assessing "loss of
dependency" of deceased Hukam Singh, the Tribunal has rightly taken
into consideration the income of deceased. Reliance is placed upon
Supreme Court's decision in K.R.Madhusudan & Ors. Vs. Administrative
Officer & Anr. 2011 III AD (SC) 161 in support of afore-noted
submission. Counsel for claimants submits that deceased Hukam Singh
was aged 50 years at the time of accident and in view of Supreme Court's
decision in Sarla Verma (Smt.) & Ors. Vs. Delhi Transport Corporation
& Anr. (2009) 6 SCC 121, the Tribunal has rightly applied multiplier of
13. Thus, it is submitted by counsel for Claimants that the compensation
granted to the Claimants and Injured is fair and just and so, these appeals
deserve dismissal.
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11. Upon hearing and on perusal of impugned Award, evidence on
record and the decisions cited, I find that merely because charge-sheet has
not been issued against driver and owner of offending vehicle in question,
it does not absolve Insurer from the liability to pay the compensation
awarded in view of eye witness account which clearly spells out
negligence of driver of the Insured vehicle. As regards driving license in
question, I find that Amit Rastogi (R3W1), Clerk, Licensing Authority,
Farukhabad, UP, does not categorically state that driving license (Ex.
R3W1/1) was not issued by the said Authority. In the considered opinion
of this Court, the Tribunal has rightly concluded that negligence aspect
has not been conclusively proved. On the aspect of permission to drive in
hilly area, there is no cross-examination of this witness (R3W1). So, the
finding of rash and negligent driving returned by the Tribunal against
driver of Insured vehicle is fully justified.
12. On the aspect of quantum of compensation awarded to Claimants
of deceased Hukam Singh, I find that Supreme Court in K.R.Madhusudan
(Supra) has reiterated that where the annual income is in the taxable
range, the word "actual salary" should be read as "actual salary less
tax". The pay slip of deceased for the month of March, 2012 on record
shows that he was having total gross income of `6,55,920/- per annum
and after deduction of payable tax of `30,000/- approximately (in terms
of Form -16 of financial year 2011-12 on record), the net income of
deceased was `6,25,920/-per annum. In view of Supreme Court's
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decision in Sarla Verma (Supra), I find that the Tribunal has rightly
applied multiplier of 13. In face of Supreme Court's Constitution Bench
decision in National Insurance Company Ltd. Vs. Pranay Sethi & ors.
(2017) 16 SCC 680, the addition towards "future prospects" ought to be
15% and not 30%, as awarded by the Tribunal. Hence, "loss of
dependency" is accordingly reassessed as under:-
`6,25,920/- p.a. X 3/4 X 13 X 115/100 = `70,18,128/-
13. The compensation granted under the „non pecuniary heads‟, needs
to be brought in tune with Supreme Court's decision 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/- and "loss of estate" is also
reduced from `1,00,000/- to `15,000/-. The compensation granted under
the head "loss of consortium" is also reduced from `1,00,000/- to
`40,000/-.
14. Consequentially, the compensation payable to legal heirs of
deceased Hukam Singh is reassessed as under:-
Loss of dependency `70,18,128/-
Funeral Expenses `15,000/-
Loss of estate `15,000/-
Loss of consortium `40,000/-
Total `70,88,128/-
15. In case of deceased Jamuna, this Court finds that the Tribunal has
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rightly taken income of deceased at `7,358/- p.m. while assessing "loss of
dependency". However, compensation granted 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 under the head of "loss of love & affection" is
disallowed. The "funeral expenses" are reduced from `25,000/- to
`15,000/- and "loss of estate" is also reduced from `1,00,000/- to
`15,000/-. The compensation granted under the head "loss of
consortium" is also reduced from `1,00,000/- to `40,000/-.
16. Consequently, the compensation payable to legal heirs of deceased
Jamuna is reassessed as under:-
Loss of dependency `9,27,108/-
Funeral Expenses `15,000/-
Loss of estate `15,000/-
Loss of consortium `40,000/-
Total `9,97,108/-
17. Resultantly, the compensation awarded to legal heirs of deceased
Hukam Singh is reduced from `87,88,786/- to `70,88,128/-. Similarly,
compensation awarded to legal heirs/ Claimants of deceased Jamuna is
reduced from `14,52,108/- to `9,97,108/-. As regards the compensation
awarded to Injured-Pushpa Badwal and Umesh Chandra Singh is
concerned, I find that in view of the nature of grievous injuries suffered
by them, the compensation granted to them by the Tribunal is just and
fair. So far as interest granted by the Tribunal is concerned, a Three Judge
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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, in the instant case, it is directed that the
awarded compensation shall carry interest @ 9% per annum. The
modified compensation be released to Claimants and the Injured, in the
ratio and manner, as indicated in the impugned Award. Statutory deposit
along with excess deposit, if any, be refunded to the Insurer.
18. With aforesaid directions, the above captioned appeals are disposed
of.
(SUNIL GAUR)
JUDGE
JULY 24, 2018
r
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