Delhi High Court
Yogender Singh & Anr. vs Manjeet Yadav & Anr ( The New India ... on 16 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: October 16, 2018
+ MAC.APP. 302/2017
YOGINDER SINGH & ANR. .....Appellants
Through: Mr. Ajay Singh and Mr. Pranay
Jain, Advocates
versus
SHANKAR YADAV & ORS. .....Respondents
Through: Mr. Parveen Kumar Mehdiratta,
Advocates for respondent No. 9
+ MAC.APP. 231/2018
YOGENDER SINGH & ANR. .....Appellants
Through: Mr. Ajay Singh and Mr. Pranay
Jain, Advocates
versus
MANJEET YADAV & ANR ( THE NEW INDIA ASSURANCE
CO. LTD ) .....Respondents
Through: Mr. Parveen Kumar Mehdiratta,
Advocates for respondent No. 2
+ MAC.APP. 263/2018
SHANKAR YADAV & ORS. .....Appellants
Through: Mr. Ajay Singh and Mr. Pranay
Jain, Advocates
versus
YOGINDER SINGH & ORS (THE NEW INDIA ASSURANCE
CO LTD ). .....Respondents
Through: Mr. Parveen Kumar Mehdiratta,
Advocates for respondent No. 3
MAC.APPs.302/2017, 231/2018 & 263/2018 Page 1 of 7
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. The above-captioned three appeals arise out of common impugned
Award of 2nd May, 2015, vide which the Motor Accident Claims Tribunal
(henceforth referred to as 'the Tribunal') has awarded compensation of
`7,84,000/- with interest @ 9% p.a. to Claimants on account of death of a
Scrap Dealer (Kabadi)-Kundan, aged 24 years, in a vehicular accident,
which took place in the night intervening 29th and 30th June, 2013.
2. In this accident, one Manjeet was also injured and the Tribunal
vide impugned Award of 2nd May, 2015 has granted lump sum
compensation of `15,000/- with interest @ 9% p.a. to him, which is also
under challenge in the above-captioned appeals.
3. In the above-captioned first two appeals, owner and driver of
Insured vehicle, i.e. Tractor, seek modification of the impugned Award
on the ground that liability is of Insurer to pay the awarded compensation
and reduction in the quantum of compensation awarded by the Tribunal.
In the above-captioned third appeal, enhancement of compensation
granted by the Tribunal to legal heirs of deceased is sought by
Claimants/legal heirs of deceased-Kundan.
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:-
"It is the case of petitioners that on 29/30.6.2013
at about 12.00 A.M (midnight) at Pakoda Park, Nasir
Pur Road, Near New Bharti Public School, Sagar
Pur, New Delhi, the deceased Shri Kundan Yadav
along with Shri Manjeet was coming from Palam to
Nasir Pur, New Delhi on motorcycle bearing No. DL-
9SQ-5833 which was being driven by the deceased at
the time of the accident. When they reached near
Pakoda Park, Nasir Pur Road, in front of New Bharti
School, Sagar Pur, New Delhi, suddenly the offending
vehicle - a tractor attached with trolley containing
bricks bearing No. HR-13D-7650, which was being
driven by the respondent No.1 in a rash and negligent
manner without following the traffic rules and
byelaws, took a wrong turn and hit the motorcycle
with force due to which the deceased came under the
wheel of the offending vehicle and the pillion rider
and motorcycle fell on the road. It is averred that the
deceased was badly crushed under the offending
vehicle and died on the spot. The pillion rider also
sustained grievous injuries and the motorcycle of the
deceased was also badly damaged. MLC No. 2295
dated 11th February, 2013 was prepared. It is stated
that in respect of the accident FIR No.128/2013 under
Sections 279/304A/337 IPC was registered at PS
Sagarpur."
6. To render the impugned Award, the Tribunal has relied upon
evidence of Claimants/legal heirs of deceased and other evidence on
record. On the strength of evidence recorded, impugned Award has been
rendered. The breakup of compensation awarded by the Tribunal to legal
heirs of deceased-Kundan is as under:-
1. Loss of dependency : `6,49,000/-
2. Love and affection : `1,00,000/-
3. Loss of estate : `10,000/-
4. Funeral expenses : `25,000/-
Total : `7,84,000/-
7. The challenge to common impugned Award by learned counsel for
owner of insured tractor is on the ground that insured tractor was being
used to carry bricks for purpose of making a shelter in the field and was
not being used for commercial purpose and so, there was no breach of
terms and conditions of the Insurance Policy. So, it is submitted that the
liability to pay the awarded compensation is of The New India Assurance
Company Limited (hereinafter referred to as 'Insurer'). It is submitted
that the quantum of compensation granted by the Tribunal is on higher
side. It is next submitted that the deceased was driving the motor-cycle
without headlights and so, the contribution of deceased in causing the
accident was to the extent of 50% and therefore, the quantum of
compensation granted by the Tribunal deserves to be suitably reduced.
8. On the contrary, counsel for Insurer supports the impugned Award
and submits that the quantum of compensation granted by the Tribunal is
adequate. However, legal heirs of deceased seek enhancement of
compensation granted by the Tribunal on the ground that no addition
towards 'future prospects' has been made and the applicable multiplier
ought to be as per age of deceased and not as per the age of mother. So, it
is submitted that the quantum of compensation granted to legal heirs of
deceased-Kundan deserves to be substantially enhanced.
9. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that as per Policy Schedule-cum-Certificate of Insurance
(Ex.PW1/4) in respect of insured tractor in question reveals that the
limitation to use the tractor as per this Insurance Policy is for all kinds of
use, except organized racing, pace making, reliability trials and speed
testing. So, it cannot be said that there was any conscious breach of terms
and conditions of the Insurance Policy. In the considered opinion of this
Court, the Tribunal has erred in putting the liability on the owner of
insured tractor as the liability to pay the awarded compensation is of the
Insurer. Since driver of the tractor has not stepped into the witness box to
controvert the version put forth by the Claimants regarding the manner in
which accident in question took place, therefore, there is no basis to hold
that the instant case is of contributory negligence.
10. As regards the quantum of compensation granted by the Tribunal, I
find that the Tribunal has erred in not making any addition towards
'future prospects'. Since the deceased was aged 24 years on the day of
the accident and his income is rightly assessed by the Tribunal on
minimum wages payable to an unskilled worker, therefore, in view of
Supreme Court's Constitution Bench decision in National Insurance
Company Ltd. Vs. Pranay Sethi & Ors. (2017) 16 SCC 680 addition of
40% towards 'future prospects' is made.
11. The Tribunal has erred in applying the multiplier as per the age of
mother of deceased. In view of Supreme Court's decision in Pranay Sethi
(Supra), the multiplier as per the age of deceased has to be applied. Thus,
the applicable multiplier is of 18. Accordingly, the 'loss of dependency' is
reassessed as under:-
₹7,722/- X 12 X 140/100 X 50/100 X 18 = ₹11,67,566.40/-
(rounded off to ₹11,67,567/-)
12. The compensation granted by the Tribunal under '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 legal heirs of deceased-Kundan under the head
of 'loss of love & affection' is disallowed. The 'funeral expenses' are
reduced from `25,000/- to `15,000/-. However, compensation granted
under the head 'loss of estate' is enhanced from `10,000/- to `15,000/-.
Consequentially, the compensation payable to legal heirs of deceased-
Kundan is reassessed as under:-
1. Loss of dependency : `11,67,567/-
2. Loss of estate : `15,000/-
3. Funeral expenses : `15,000/-
Total: `11,97,567/-
13. In the light of aforesaid, total compensation payable to legal heirs
of deceased-Kundan is enhanced from `7,84,000/- to ₹11,97,567/- which
shall carry interest @ 9% per annum. 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 legal
heirs of deceased-Kundan in the ratio and manner, as indicated in the
impugned Award.
14. So far as the compensation granted to Injured-Manjeet is
concerned, I find it to be just and fair. As such, no case for its reduction is
made out.
15. While modifying the impugned Award in the aforesaid terms, the
above captioned three appeals are accordingly disposed of.
(SUNIL GAUR)
JUDGE
OCTOBER 16, 2018
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