Delhi High Court
The Oriental Insurance Co Ltd vs Kiran Alexander & Ors. on 15 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: October 15, 2018
+ MAC.APP. 432/2016
THE ORIENTAL INSURANCE CO LTD ..... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
KIRAN ALEXANDER & ORS. .....Respondents
Through: Nemo.
+ MAC.APP. 440/2016
THE ORIENTAL INSURANCE CO LTD .....Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
HEMLATA ALEXANDER & ORS. .....Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. The above captioned two appeals arise out of separate Awards of
even date i.e. 2nd February, 2016, vide which the Motor Accident Claims
Tribunal (henceforth referred to as the "Tribunal") has awarded
compensation of `28,57,000/- with interest @ 9% p.a. to legal heirs of a
Nursing Orderly - Rajesh, aged about 40 years, in a vehicular accident
MAC.APP. 440/2016
which took place on 11th June, 2015.
2. In this unfortunate accident in question, Kiran-mother of deceased-
Rajesh, aged 68 years had sustained injuries and the Tribunal vide award
of even date has granted lump-sum compensation of `12,000/- with
interest @ 9% p.a. to Kiran (henceforth referred to as the "Injured"),
which is under challenge in the above captioned first appeal.
3. In the above captioned appeals, appellant -The Oriental Insurance
Company Limited (henceforth referred to as the "Insurer") assails the
impugned Awards on the ground that quantum of compensation granted
by the Tribunal to Injured-Kiran and legal heirs of deceased-Rajesh is
exorbitant. Impugned Award is also challenged by the Insurer on the
aspect of liability to pay the compensation awarded.
4. Despite service, there is no representation on behalf of respondents,
who are the owner and driver of insured vehicle in question and the
Claimants i.e. Injured and legal heirs of deceased. Since these two
appeals arise out of one vehicular accident, therefore, 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:-
"It is the case of petitioners that on 11th June, 2015 at about
4.25 a.m. the deceased Shri Rajesh Kumar, S/o Late Shri U.Alexander
was going to his residence at Sector-3, Dwarka, New Delhi from the
side of Delhi Cantt. driving Wagon R car bearing registration No.DL-
2CV-8541 accompanied by his mother namely Mrs. Kiran Alexander
i.e. the petitioner sitting on the co-driver seat thereof, at a normal
speed at his correct side observing proper lookouts. When he reached
before Palam Flyover, Delhi Cantt. in the meanwhile a Mahindra
Tractor connected with a water tanker bearing registration No. DL-
MAC.APP. 440/2016
1E-1802 being driven by its driver/ respondent No.1 at an exorbitantly
high speed in a most rash, reckless and negligent manner without
observing proper lookouts, without blowing any horn in contravention
of traffic rules and regulations being laid down by Delhi Traffic
Police came from behind and overtook the WagonR being driven by
the deceased from the right hand side and swerved it towards the
divider of the road, consequently the WagonR being driven by the
deceased struck against the offending tractor, resultantly the deceased
had sustained fatal head injuries. He was shortly removed to nearby
Deen Dyal Upadhyay Hospital, Hari Nagar, New Delhi where he was
admitted vide MLC NO.5003 dated 11.06.2015 and was declared to
have been brought dead and could not be saved inspite of the tireless
efforts made by the treating doctors. The petitioner was also admitted
there vide MLC No.4980 dated 11.06.2015 of DDU Hosptial, Hari
Nagar, Delhi and was discharged after administering the requisite
First Aid Treatment."
6. To render the impugned Award, the Tribunal has relied upon
evidence of widow-Hemlata Alexender (PW-1) and Injured- Kiran
Alexender (PW-2) and other evidence on record. The Tribunal has
awarded lump-sum compensation of `12,000/- to Injured-Kiran. In the
case of deceased-Rajesh, to assess his "loss of dependency", the Tribunal
has calculated his income on the basis of Salary Slip (Ex.PW3/A colly)
and has made addition of 30% towards „future prospects‟ and multiplier
of 15 has been applied. Deduction of 1/4th towards "personal expenses"
has been also made. The Tribunal has held that negligence of driver of the
insured vehicle is 75% and of the vehicle driven by deceased is 25%.
7. The breakup of compensation awarded by the Tribunal to legal
heirs of deceased-Rajesh is as under:-
1. Loss of dependency `26,22,000/-
2. Love and affection `1,00,000/-
3. Loss of consortium `1,00,000/-
MAC.APP. 440/2016
4. Loss of estate `10,000/-
5. Funeral expenses `25,000/-
Total ₹28,57,000/-
8. The challenge to the impugned Award by counsel for Insurer is on
the ground that the Tribunal has erred in granting lump-sum
compensation to Injured, though the injury sustained by her was simple in
nature and so, compensation awarded to Injured needs to be suitably
reduced.
9. It is next submitted by counsel for Insurer that that the Tribunal has
also erred in holding driver of the insured vehicle to be negligent to the
extent of 75%. It is submitted that the negligence of the insured vehicle at
best can be taken to be 50%. On the quantum aspect, it is submitted that
the income of deceased has been calculated on the basis of Salary Slip
(Ex. PW3/A Colly.) on record, without deducting the tax payable. It is
further submitted by counsel for Insurer that the compensation granted
under the non-pecuniary heads is required 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. It is also
submitted that grant of penal interest of 12% by the Tribunal is
unwarranted.
10. On the liability aspect, counsel for Insurer submits that appellant
had insured the truck and not the trolly attached to it. It is submitted that
evidence of appellant's witness- Pallavi (R3W1) remains unchallenged ,
as driver and owner of the truck in question had not cross-examined this
witness (R3W1) and so, recovery rights ought to be granted to appellant
against owner and driver of the insured vehicle i.e. the truck. It is further
MAC.APP. 440/2016
submitted that the tractor in question was insured for agricultural and
forestry purpose but it was being used on road for watering plants.
11. Upon hearing and on perusal of impugned Award, evidence on
record and the decision cited, I find that the version of Injured (PW-2)
reveals that the insured vehicle i.e. the truck had overtaken the car of
deceased from right side and had suddenly stopped in front of the car of
deceased, which had caused the accident in question. The driver of
insured vehicle has not come forward to set up a contrary version. There
is nothing in the cross-examination of Injured-eyewitness which could
demolish the version put-forth in her evidence. In the considered opinion
of this Court, the Tribunal has rightly concluded that the negligence of
driver of the insured vehicle was 75%.
12. In view of Salary Slip (Ex.PW3/A colly) of deceased, this Court
finds that no tax was liable to be deducted, as income of deceased was not
taxable and so, on this account the impugned Award cannot be faulted
with. The compensation granted by the Tribunal under the non-pecuniary
heads to legal heirs of deceased-Rajesh 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. "Funeral expenses" are reduced
from `25,000/- to `15,000/- and compensation under the head of "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/-.
13. In light of the aforesaid, the compensation payable to legal heirs of
MAC.APP. 440/2016
deceased - Rajesh is re-assessed as under:-
1. Loss of dependency `26,22,000/-
2. Loss of consortium `40,000/-
4. Loss of estate `15,000/-
5. Funeral expenses `15,000/-
Total ₹26,92,000/-
14. On the liability aspect, I find that in terms of insurance policy, the
insured vehicle i.e. the tractor in question was to be used for forestry
purposes. Infact, it was being used for watering plants, which is a forestry
purpose. As per the insurance policy of the insured vehicle on record, it
could be used with one trolly. There is nothing on record to show that a
separate insurance cover is required for a trolley to be used with the
insured tractor. In the considered opinion of this Court, there is no
conscious breach of terms of insurance policy and so, the liability to pay
the awarded compensation is of the appellant.
15. As regards, lump-sum compensation of `12,000/- granted by the
Tribunal to Injured-Kiran is concerned, I find that as per MLC of Injured,
she had sustained injuries in this accident. Though the Injured had
deposed before the Tribunal but not in respect of the injuries sustained by
her. Considering the fact that the Injured had sustained lacerated wounds
and had sustained injuries on right knee etc. and she was advised voveran
injection and other medication, I find that lump-sum compensation of
`12,000/- granted to her is justified.
16. In light of the aforesaid, the compensation granted to legal heirs of
deceased-Rajesh is reduced from ₹28,57,000/- to ₹26,92,000/-. However,
the compensation granted to Injured-Kiran is maintained. The grant of
MAC.APP. 440/2016
penal interest of 12% by the Tribunal is waived. The modified
compensation shall carry interest @ 9% per annum. It be released
forthwith to legal heirs of deceased- Rajesh and Injured-Kiran in the
manner as indicated in the impugned Award. Statutory deposit and the
excess deposit, if any, be refunded to Insurer.
17. While modifying the impugned Awards in the aforesaid terms, the
above captioned two appeals are accordingly disposed of.
(SUNIL GAUR)
JUDGE
OCTOBER 15, 2018
r
MAC.APP. 440/2016
