Delhi High Court
National Insurance Co Ltd vs Kamla Chauhan & Ors on 27 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 27, 2018
+ MAC.APP. 756/2015 & CM 2210/2015
NATIONAL INSURANCE CO LTD ..... Appellant
Through: Ms. Neerja Sachdeva, Advocate
versus
KAMLA CHAUHAN & ORS .....Respondents
Through: Mr.T.K. Mukherjee and Mr. M.S.
Rawat, Advocates for respondents No.1 to 4
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 30th July, 2015 grants compensation of
`13,07,090/- with interest @ 9% p.a. to respondents-Claimants on
account of death of a driver-Prithvi Raj aged 53 years in a vehicular
accident on 28th February, 2013.
2. The factual background of this case, as noticed in the impugned
Award, is as under:-
"The facts, in brief, as mentioned in the petition are
that on 28.02.2013 at about 04:35 am, while the deceased
Prithvi Raj Chauhan S/o Late Sh. Padam Singh, was going to
his office on his motorcycle make Passion Pro bearing
registration no. DL-3SCB-8612, and when he reached near
Aali More Red Light, Mathura Road, Badarpur, New Delhi,
then all of sudden, one vehicle i.e. Truck bearing registration
no. DL-3SCB-8612, being driven by respondent no. 1 rashly
and negligently, hit his motorcycle with great force. It is
stated that as a result of the said accident, the victim fell
down on the road and sustained injuries on his neck, hands
and feet. He was immediately removed to Jai Prakash
Narayan Apex Trauma Centre, AIIMS Hospital, where he
was declared "brought dead". The post-mortem is stated to
have been conducted at AIIMS Hospital, New Delhi."
3. On the basis of evidence led, impugned Award has been rendered
by Motor Accident Claims Tribunal (SE-01), Saket Courts, New Delhi
(henceforth referred to as "the Tribunal") and the breakup of
compensation awarded by the Tribunal is as under:-
Loss of dependency ₹8,82,090/-
Loss of Consortium ₹1,00,000/-
Loss of love & affection ₹2,00,000/-
Funeral expenses ₹25,000/-
Loss of Estate ₹1,00,000/-
Total ₹13,07,090/-
4. The challenge to impugned Award by learned counsel for
appellant-Insurer is on the ground that driving licence of driver of the
insured vehicle was for Light Motor Vehicle (LMV), whereas he was
driving aforesaid Truck (hereinafter referred to as the insured vehicle),
which is a Heavy Motor Vehicle (HMV) and so, the Tribunal ought to
have granted the recovery rights to appellant qua driver and owner of the
insured vehicle. Regarding assessment of income of deceased, it is
submitted by appellant's counsel that addition towards „future prospects‟
ought to be 10%, whereas the Tribunal has erred in making addition of
15% towards „future prospects‟. Regarding „non-pecuniary damages', it
is submitted by learned counsel for appellant-Insurer that the quantum of
compensation granted under this head needs to be reduced in light of
Supreme Court's Constitution Bench decision in National Insurance
Company Ltd. Vs. Pranay Sethi & Ors. (2017) 16 SCC 680.
5. On the contrary, learned counsel for respondents-Claimants
supports the impugned Award and submits that the compensation
awarded is just and fair and so, this appeal deserves to be dismissed.
6. Upon hearing and on perusal of impugned Award, evidence on
record and the decision cited, I find that as per the Report (Ex.R3W1/2) of
the concerned licencing authority, the driving licence in question was
valid for LMV only, whereas the driver of the insured vehicle was found
to be driving a truck. The evidence of witness (R3W1), who has proved
the aforesaid Report (Ex.R3W1/2), remains unchallenged. The driver and
owner of the insured vehicle have neither contested before the Tribunal
nor before this Court. The Tribunal has erred in discarding Report
(Ex.R3W1/2) of the concerned licencing authority and in relying upon the
report of a Police Officer, which is un-exhibited. A perusal of the record
reveals that the Police Officer's affidavit does not pertain to the driving
licence of driver of the insured vehicle from Farrukhabad and the said
affidavit also endorses that the driving licence in question was for LMV.
While relying upon the Report (Ex.R3W1/2) of the concerned licencing
authority, it is held that appellant-Insurer is entitled to grant of recovery
rights qua the driver and owner of the insured vehicle.
7. In view of Supreme Court's decision in Anita & Ors. Vs. Arun
Yadav & Ors. 2017 SCC OnLine SC 1139 and Pranay Sethi (supra),
addition towards „future prospects‟ in a case of deceased aged more than
50 years, whose income is assessed on minimum wages, has to be 10%
and not 15%. However, this Court finds that the minimum wages of a
skilled person has to be the basis to assess the „loss of income‟ as the
deceased was a driver by profession and was holding a valid driving
licence. The minimum wages of a skilled worker in Delhi on the day of
the accident i.e. 28th February, 2013, were `8814/- per month. Supreme
Court in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC
65 has reiterated that it is the obligation of the Court to ensure that the
compensation granted is just, fair and proper. Accordingly, the „loss of
dependency‟ is reassessed as under: -
`8814/-p.m. X 12 X 11 X 110/100 X 3/4 = `9,59,844/-
8. As regards compensation granted by the Tribunal under the „non
pecuniary heads‟, it 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/-. Similarly, 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 reduced
from `1,00,000/- to `40,000/-.
9. In light of the aforesaid, the compensation payable to respondents-
claimants is reassessed as under:-
Loss of dependency ₹9,59,844/-
Loss of Consortium ₹40,000/-
Funeral expenses ₹15,000/-
Loss of Estate ₹15,000/-
Total ₹10,29,844/-
10. Consequentially, the compensation amount payable stands reduced
from `13,07,090/- to ₹10,29,844/-. The modified compensation shall
carry interest @ 9% per annum. Compensation awarded be released
forthwith to respondents-claimants in terms of impugned Award.
Statutory deposit alongwith excess deposit, if any, be refunded to
appellant-Insurer.
11. With aforesaid directions, this appeal and the application are
disposed of.
(SUNIL GAUR)
JUDGE
JULY 27, 2018
s
