Delhi High Court
Seema Begum vs Arun Kumar Singh (United India ... on 11 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: October 11, 2018
+ MAC.APP. 380/2016
SEEMA BEGUM ..... Appellant
Through: Mr. Rajiv Ranjan Dwevedi,
Advocate
Versus
ARUN KUMAR SINGH (UNITED INDIA INSURANCE
COMPANY LIMITED) ..... Respondent
Through: Mr. Deepak Jain, Advocate for
respondent No.1
Mr. Mohit Singh, Mr. Sudhir Nagar &
Ms. Bhanu Sanoriya, Advocates for respondent
No.2
Mr. Animesh Sinha, Advocate for respondent
No.3
+ MAC.APP. 497/2017
ANIL KUMAR ..... Appellant
Through: Mr. Deepak Jain, Advocate
Versus
M/S UNITED INSURANCE CO LTD & ORS. ..... Respondents
Through: Mr. Animesh Sinha, Advocate for
respondent No.1
Mr. Rajiv Ranjan Dwevedi, Advocate for
respondents No.2 & 3
Mr. Deepak Jain, Advocate for
respondent No.4
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
MAC.APP. 380/2016 Page 1 of 7
MAC.APP. 497/2017
JUDGMENT
(ORAL)
1. The above captioned two appeals are directed against Award of
30th January, 2016 vide which compensation of `13,05,000/- with interest
@ 12% per annum has been awarded to Claimants, who are the parents of
Javeria Mahmood, who had died in a vehicular accident on 23rd
September, 2011.
2. In the above captioned first appeal, appellant-Claimant seeks
enhancement of compensation granted, whereas in the above captioned
second appeal, owner of the offending vehicle seek exoneration from
paying the compensation granted by the Tribunal. Since these two
appeals arise out of common impugned Award of 30th January, 2016,
therefore, both these appeals have been heard together and are being
decided by this common judgment. The facts as noted in impugned
Award are as under:-
"The facts in brief as set up by the Petitioners in
their Petition are that on 23.09.2011 at about 5.10 PM,
deceased Ms. Javeria Mahmood was returning from
college on her scooty. As she reached at Pushta Road
towards Laxmi Nagar, a vehicle make Mahindra
Champion (open body LGV) bearing registration number
DL-1LH-8821 (hereinafter referred to as offending
vehicle), driven by its driver at a high speed and in a
negligent manner hit the scooty from behind and ran over
the deceased. The deceased was crushed under the
wheels. She was taken to Walia Nursing Home from
where she was referred to LBS Hospital. However, she
succumbed to her injuries. A case u/s 279/304A IPC was
MAC.APP. 497/2017
registered vide FIR No. 690/11 at Police Station
Shakarpur against the respondent no. 1."
3. The Motor Accident Claims Tribunal (hereinafter referred to as
'the Tribunal') has relied upon the evidence of father of deceased and the
other evidence on record, to award the compensation as noticed
hereinabove. Deceased- Javeria Mahmood was aged 17 years on the day
of this vehicular accident and as per evidence of her father- Mahmood Ali
Khan (PW-1), she was a student. The Tribunal has calculated the "loss of
dependency" while taking notional income of deceased at `20,000/- p.m.
and after deducting 50% towards "personal expenses" and by applying
multiplier of 9, "loss of dependency" has been assessed at `10,80,000/-.
Compensation of `1,00,000/- has been awarded under the head of 'Loss
of love and affection‟ and 'Funeral Expenses' of `25,000/- have been
granted by the Tribunal. Under the head 'Loss of Estate' `1,00,000/- has
been granted. The break-up of compensation awarded by the Tribunal to
the Claimants is as under:-
Loss of dependency `10,80,000.00
Loss of Love and affection `1,00,000.00
Funeral expenses `25,000.00
Loss of Estate `1,00,000.00
Total `13,05,000.00
4. The Tribunal vide impugned Award has directed M/S United India
Insurance Company Limited (henceforth referred to as the "Insurer") to
pay the awarded compensation to mother of deceased, with right to
recover it from driver and owner of the insured vehicle.
MAC.APP. 497/2017
5. The challenge to the impugned Award by learned counsel for
Claimant/ legal heir of deceased is on the ground that the applicable
multiplier has to be according to the age of deceased and not as per the
age of Claimant, and the Tribunal has erred in not doing so. It is next
submitted by counsel for Claimant that denial of interest w.e.f. 14th April,
2014 is unjustified in view of order of order of 3rd February, 2015 in
CM(M) 93/2015 Mahmood Ali Khan & Anr. Vs. Arun Kumar Singh &
Ors. It is further submitted that deceased- Javeria Mahmood was a
student, who was pursing B.A.LLB and was in 1st Semester and had a
bright future ahead and the Tribunal has erred in not granting
compensation towards „future prospects‟. Lastly, it is submitted that the
compensation awarded by the Tribunal be suitably enhanced.
6. The stand taken by counsel for Owner of the insured vehicle is that
the Tribunal has erred in granting recovery rights to the Insurer on the
plea that the Fitness Certificate of the insured vehicle had expired just
twenty three days prior to the accident. Reliance is placed upon Kerala
High Court's decision in Augustine, V.M. Vs. Ayyappankutty @ Mani &
Anr. I.L.R. 2015 (2) Kerala 764 to submit that expiry of Fitness
Certificate amounts to technical violation only and unless it is proved that
the insured vehicle was used for a purpose unauthorized by the permit,
recovery rights ought not to be granted. So, it is submitted that grant of
recovery rights to Insurer against owner of the insured vehicle is
unjustified and so, impugned Award deserves to be modified to extent of
denying recovery rights to Insurer.
7. On the contrary, counsel for respondent-Insurer supports the
MAC.APP. 497/2017
impugned Award and submits that grant of recovery rights to respondent-
Insurer is justified. Reliance is placed upon Supreme Court's decision in
Narinder Singh Vs. New India Assurance Company Limited & Ors.
(2014) 9 SCC 324 to submit that the Insurer is within its rights to
repudiate the claim due to expiry of Registration Certificate of insured
vehicle and in view of Section 56 of Motor Vehicles Act, 1988, grant of
recovery rights to Insurer is justified. On the quantum aspect, counsel for
Insurer submits that compensation granted under the non-pecuniary heads
needs to be brought in tune with Supreme Court's Constitution Bench
decision in National Insurance Company Ltd. Vs. Pranay Sethi & ors.
(2017) 16 SCC 680.
8. Upon hearing and on perusal of impugned Award, evidence on
record and the decisions cited, I find that the Fitness Certificate of insured
vehicle had lapsed just a few weeks prior to the accident. It is nobody's
case that the vehicle was not being used for a purpose unauthorized by
the permit. Not having the Fitness Certificate had not contributed to the
causing of accident. Section 56 of the Motor Vehicles Act, 1988 clearly
provides that a transport vehicle shall not deemed to be validly registered,
unless it carries a certificate of fitness. In the considered opinion of this
Court benefit of Supreme Court's decision in Narinder Singh (Supra)
cannot be availed of by Insurer to avoid the liability to pay the awarded
compensation because there is no cross-examination of actual owner of
the insured vehicle in question. Even if it is taken that the Insurer had
insured the vehicle in question without a Fitness Certificate, then also, the
Insurer cannot be permitted to take the benefit of its own wrong. Thus,
MAC.APP. 497/2017
this Court is of the considered opinion that liability to pay the awarded
compensation cannot be shifted upon owner, as the Insurer of the insured
vehicle is liable to pay the awarded compensation.
9. In the considered opinion of this Court, the notional income of
deceased ought to be assessed at `10,000/- per month, as deceased was a
student of B.A.LL.B first year. It is so said because Supreme Court's
Constitution Bench decision in National Insurance Company Ltd. Vs.
Pranay Sethi & ors. (2017) 16 SCC 680 has clarified that if the deceased
is aged above 15 years, then there is no necessity to rely upon Second
Schedule of the Motor Vehicles Act, 1988. While relying upon Supreme
Court's Constitution Bench in Pranay Sethi (Supra), addition of 40%
towards "future prospects" is to be made and while applying the
multiplier, the age of deceased has to be taken into consideration and not
that of claimant. The Tribunal has therefore erred in applying the
multiplier of 09, because multiplier of 18 has to be applied. However,
deduction of one half towards personal expense is just and appropriate.
Accordingly, the "loss of dependency" of deceased is reassessed as
under:-
`10,000/- X 12 X 50/100 X 140/100 X 18= `15,12,000/-
10. 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 to legal heir/ claimant of deceased- Javeria
Mahmood by the Tribunal under the head of "Loss of Love and affection"
is disallowed. The "funeral expenses" are reduced from `25,000/- to
MAC.APP. 497/2017
`15,000/- and compensation granted by the Tribunal under the head
"Loss of estate" is also reduced from `1,00,000/- to `15,000/-.
Accordingly, the compensation payable to legal heir of deceased is
reassessed as under:-
Loss of dependency `15,12,000.00
Funeral expenses `15,000.00
Loss of Estate `15,000.00
Total `15,42,000.00
11. In light of the aforesaid, compensation granted by the Tribunal to
legal heir of deceased- Javeria Mahmood is enhanced from `13,05,000/-
to `15,42,000/-. 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, in the
instant case, it is directed that the re-assessed compensation shall carry
interest @ 9% per annum. Insurer is granted six weeks time to deposit the
modified compensation with interest @9% per annum with the Registrar
General of this Court, which shall be disbursed to the Claimant in the
manner as indicated in the impugned Award. Statutory deposit, if any, be
refunded to Insurer.
12. While modifying the impugned Award to the aforesaid extent, the
above captioned two appeals are accordingly disposed of.
(SUNIL GAUR)
JUDGE
OCTOBER 11, 2018
r
MAC.APP. 497/2017
