Delhi High Court
The New India Assurance Co Ltd vs Nisha Kapoor & Ors. on 31 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 31, 2018
+ MAC.APP. 772/2015 & C.Ms. 22910/2015, 13773/2017 &
24431/2017
THE NEW INDIA ASSURANCE CO LTD .....Appellant
Through: Mr. J.P.N. Shahi, Advocate
Versus
NISHA KAPOOR & ORS. .....Respondents
Through: Mr. Anshuman Bal, Advocate
+ MAC.APP. 919/2015
NISHA KAPOOR & ORS .....Appellants
Through: Mr. Anshuman Bal, Advocate
Versus
NEW INDIA ASSURANCE CO LTD & ORS. ..... Respondent
Through: Mr. J.P.N. Shahi, Advocate
+ MAC.APP. 36/2016 & C.M. 1499/2016
THE NEW INDIA ASSURANCE CO LTD .....Appellant
Through: Mr. J.P.N. Shahi, Advocate
Versus
NIKHIL KUMAR SHARMA & ORS. .....Respondents
Through: Mr. Anshuman Bal, Advocate
MAC.APP.772/2015 Page 1 of 8
MAC.APP. 919/2015
MAC.APP. 36/2016
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. The above captioned first two appeals arise out of impugned
Award of 31st July, 2015, vide which the Motor Accident Claims
Tribunal (henceforth referred to as the "Tribunal") has awarded
compensation of `67,10,874/- with interest @12% p.a. to Claimants on
account of death of a Project Manager-Prajjwal Aditya, aged 27½ years,
in a vehicular accident which took place on 16th March, 2013.
2. In this unfortunate accident in question, a Team Leader-Nikhil
Kumar Sharma, in M/s Chaturbhave Electronic Business Solutions Pvt.
Ltd., was grievously injured and the Tribunal vide separate Award of 3 rd
December, 2015 has granted compensation of `1,41,506/- with interest
@12% p.a. to him, which is under challenge in the above captioned third
appeal.
3. In the above captioned first appeal, Insurer seeks modification of
the impugned Award on the ground of composite negligence and seeks
reduction in the quantum of compensation and the rate of interest granted.
In the above captioned second appeal, enhancement of compensation is
sought by the Claimants/ legal heirs of deceased-Prajjwal Aditya. In the
above captioned third appeal, exoneration is sought by Insurer on the
ground that negligence was of injured-Nikhil Kumar Sharma. In the
MAC.APP. 919/2015
MAC.APP. 36/2016
alternative, reduction in the quantum of compensation and the rate of
interest granted by the Tribunal is sought.
4. Since these three appeals arise out of one vehicular accident,
therefore, with the consent of learned counsel for the parties, these
appeals have been heard together and are being decided by this common
judgment.
5. The factual background of this case, as noticed in the impugned
Award, is as under:-
"1.The petitioners have filed a petition u/s 140
and 166 MV Act with the averments that the petitioners
are wife, mother and daughter of deceased Prajjwal
Aditya. All of them are his legal heirs. On 16.03.2013 at
12.40 a.m. the deceased along with Nikhil Sharma and
others was going in a car bearing registration no. UP-
16AC-2656 being driven by PW-3 Nikhil Kumar. They
reached in front of Fortis Hospital, Sector-63 Noida, UP
where a truck bearing registration no. RJ-02-GA-1869
being driven by respondent no.1 came in a high speed
and in a rash and negligent manner and hit against the
car as a result the deceased sustained injuries and
succumbed to the injuries at the spot. The other
occupants also sustained injuries. FIR no.
1303/2013/case no. 366/2013 u/S 279/338/304A IPC was
registered at Police Station, Sector-58, Noida, U.P.
2. The deceased was 27 years of age at the time
of accident who was earning Rs.54367/- per month. The
deceased used to contribute the entire income to the
family. They have suffered great pain, agony, mental
torture and shock due to the death of deceased. They
MAC.APP. 919/2015
MAC.APP. 36/2016
have lost love and affection of deceased which cannot be
compensated in terms of money. They have claimed
compensation of Rs.2 crores from the respondents with
interest @ 18% p.a. from the date of filing of petition till
its realization."
6. To render the impugned Award, the Tribunal has relied upon
evidence of Claimants/ legal heirs of deceased and other documentary
evidence on record. On the strength of evidence recorded, impugned
Award has been rendered.
7. The breakup of compensation awarded by the Tribunal to legal
heirs of deceased -Prajjwal Aditya is as under:-
1 Loss of dependency `60,60,874/-
2 Loss of consortium `1,00,000/-
3 Loss of Love & Affection `3,00,000/- (₹1
lac for each
petitioner)
4 Loss of estate `1,00,000/-
5 Los of expectancy of life `1,00,000/-
6 Funeral and transportation `50,000/-
expenses
Total `67,10,874/-
8. The breakup of compensation awarded by the Tribunal to Injured-
Nikhil Kumar Sharma is as under:-
1. Towards Pain and Sufferings `50,000/-
2. Towards Servant /Attendant `5,000/-
charges
3. Towards Conveyance and Special `6,000/-
Diet
4. Towards Medical Bills `22,000/-
5. Towards Loss of Wages `58,506/-
Total `1,41,506/-
MAC.APP. 919/2015
MAC.APP. 36/2016
9. The challenge to the impugned Awards by learned counsel for
Insurer is on the ground that the Tribunal has erred in holding the driver
of insured vehicle to be wholly and solely negligent, whereas the
evidence on record clearly shows that the accident in question had taken
place due to negligence of injured- Nikhil Kumar Sharma. Counsel for
Insurer submits that since injured Nikhil Kumar Sharma was responsible
for happening of the accident, therefore, no compensation can be granted
to him on account of grievous injuries sustained by him in the accident in
question. Reliance is placed by Counsel for Insurer upon Supreme
Court's Constitution Bench decision in National Insurance Company Ltd.
Vs. Pranay Sethi & Ors. (2017) 16 SCC 680 to seek reduction in the
quantum of compensation awarded under the non-pecuniary heads.
Regarding rate of interest granted by the Tribunal, counsel for Insurer
submits that it is exorbitant and it needs to be suitably reduced. So,
modification of impugned Awards is sought by counsel for Insurer.
10. On the contrary, counsel for Claimants and injured supports the
impugned Award and submits that the quantum of compensation granted
is inadequate. Enhancement of compensation is sought by Counsel for
Claimants on the ground that the Tribunal has erred in not making
addition of 50% towards "future prospects", as the deceased was in
permanent employment. It is pointed out by counsel for Claimants that
the tax deduction has been made twice while computing the income of
deceased Prajjwal Aditya and so, "loss of dependency" ought to be
reassessed. Nothing else is urged by either side.
MAC.APP. 919/2015
MAC.APP. 36/2016
11. Upon hearing and on perusal of impugned Awards, material on
record and the decision cited, I find that evidence of injured -Nikhil
Kumar Sharma and evidence of driver of insured truck Satbir (R3W1)
and the site plan of the spot of accident on record, reveals that the
negligence was of driver of the insured vehicle, who on the highway had
suddenly turned his truck to left and in the process, the car in which
deceased-Prajjwal Aditya and injured were travelling, had hit against the
truck. In the considered opinion of this Court, the Tribunal has rightly
concluded that the negligence was of the driver of insured vehicle.
12. On the aspect of quantum of compensation awarded to Claimants
of deceased-Prajjwal Aditya, I find that the deceased was working as
Project Manager in a private company and so, the Tribunal has erred in
observing that there is no evidence regarding "future prospects". It is so
said because the Tribunal in the impugned Award has noted that deceased
was promoted w.e.f. 1st October, 2012 and vide document Ex.PW2/5,
deceased-Prajjwal Aditya was given a higher scale of `95,000/- per
annum. A perusal of document Ex.PW2/5 of deceased-Prajjwal Aditya
reveals that in October, 2012, he was promoted as Director Coordinator.
So, employment of deceased was of permanent nature and the Tribunal
has erred in not making any addition towards "future prospects".
Accordingly, in view of Supreme Court's decision in Pranay Sethi
(Supra), addition of 50% towards "future prospects" is made, as the
deceased was aged 27½ years on the day of accident. This Court also
finds that tax deduction has been made twice from the income of
deceased-Prajjwal Aditya, as tax deduction at source was already made
MAC.APP. 919/2015
MAC.APP. 36/2016
from his monthly salary and so, there was no occasion to again make
further deduction of 10% from his total income. Accordingly, the "loss of
dependency" of deceased-Prajjwal Aditya is re-assessed as under:-
`5,48,220/- X 17 X 2/3 X 150/100 = `93,19,740/-
13. The compensation granted by the Tribunal 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 to Claimants of deceased-Prajjwal
Aditya under the heads of „loss of love & affection‟ and "loss of
expectancy of life" is disallowed. The „funeral expenses‟ are reduced
from `50,000/- 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/-. Consequentially, the compensation
payable to legal heirs of deceased-Prajjwal Aditya is reassessed as
under:-
1.) Loss of dependency : `93,19,740/-
2.) Loss of estate : `15,000/-
3.) Funeral and transport expenses : `15,000/-
4.) Loss of consortium : `40,000/-
Total : `93,89,740/-
14. In the light of aforesaid, total compensation payable to Claimants is
enhanced from `67,10,874/- to `93,89,740/-. As far as interest granted by
the Tribunal is concerned, a Three Judge Bench of Supreme Court in a
recent decision of Jagdish v. Mohan and Others, (2018) 4 SCC 571 has
MAC.APP. 919/2015
MAC.APP. 36/2016
granted interest @ 9% per annum on the awarded compensation and so,
in the instant case, rate of interest of 12% p.a. awarded by the Tribunal is
reduced and it is directed that the re-assessed compensation shall carry
interest @ 9% p.a. The enhanced compensation alongwith interest be
deposited within six weeks by Insurer with the Registrar General of this
Court and thereafter, it be disbursed to Claimants of deceased-Prajjwal
Aditya in the ratio and manner, as indicated in the impugned Award.
15. In the preceding paragraphs, this Court has already concluded that
the negligence was of driver of the insured vehicle and not of injured
Nikhil Kumar Sharma. So far as quantum of compensation granted to him
is concerned, I find that the evidence on record justifies the quantum of
compensation granted to him and no case for reducing it is made out.
However, in view of Supreme Court's decision in Jagdish (Supra), rate of
interest awarded on the compensation is reduced from 12% to 9% p.a.
The compensation awarded be released to Injured Nikhil Kumar Sharma
forthwith.
16. With aforesaid modification in the impugned Awards, the above
captioned three appeals and the applications are disposed of. Statutory
deposit, if any, be refunded to Insurer.
(SUNIL GAUR)
JUDGE
JULY 31, 2018
r
MAC.APP. 919/2015
MAC.APP. 36/2016
